Virginia Juvenile and Domestic Relations Court - Trying Civil Cases in J&DR

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

Introduction

Last week, I began a promised four part series covering the basics of trying civil cases in each of the three Virginia trial courts.  Last week's post provided an introduction to the three courts and a basic breakdown of what kinds of cases are heard in each court.  This week, I will begin providing the more detailed assessment of practice in each court.  Today's topic is the Juvenile and Domestic Relations District Court, commonly referred to as J&DR or JDR.

Differences from County to County

It's important to know that J&DR does not have a great deal in set rules of procedures from the state, unlike the other courts.  The result is that there can be some pretty substantial differences in practice from county to county.  As a result, I am primarily going to be talking about how things work in Fairfax County here.  That being said, most counties I have been in for J&DR appearances follow identical or very similar procedures, there being only one or two I can think of that I have practiced in whose procedures have been substantially different.

Typical Case

It's important to also note that different kinds of cases can have different procedures.  This is not just a J&DR thing, that's true in all courts.  As a result, in this post (and in my future posts in this series) I will be talking about a "typical" case for the most part, then have a section near the end giving the very basics of some "atypical" cases that are still important to know.

In J&DR, I would consider a "typical case" to be a case seeking to establish child custody, child visitation, child support and/or spousal support.

Step 1:  File your Petition

J&DR is a "petition-based" court.  This means that you are "petitioning" the court to grant you certain relief, and the case is properly captioned as "Petitioner v. Respondent" rather than "Plaintiff v. Defendant."  The distinction is no longer particularly important, and if you accidentally label a pleading as "plaintiff" or "defendant," you are unlikely to get in trouble for it.  Nonetheless, this is useful to know because I have found some clients to be confused by the names of various documents since they don't conform to the lawsuit language you might see on TV.

Anyways, the first step to begin a J&DR case is to file your petition.  If you don't have an attorney, go to your local J&DR civil intake office, where a clerk will assist you in filling out the proper paperwork.  If you do have an attorney, they will have their own forms and can skip the intake office, which is an advantage as an attorney-filed petition will generally get converted into a case file and heard by the court faster than an intake office filed petition.

Step 2:  Status Conference

One of the great things about J&DR is that they will usually take care of serving all parties on their own, so this is one less thing for you to worry about.  After your case is filed, the court will schedule it for what is called a "status conference."  Note that some courts actually require you to pick the date of your status conference when filing and note it on your petition, so you should consider calling ahead to find out if that's the case in your court before you file.

Once scheduled, a notice setting the status conference, along with a copy of the petition, will be served on all parties (including you).

At the status conference, the judge will ask you the status of your case - specifically whether or not you and the other side have reached an agreement on the matter at issue.  If so, the court will usually enter an agreed order right then and there.  If not, the judge will ask you how long of a trial you think will be necessary, and then work with you to set a date for the trial.

Two important things can also happen at a status conference.  First, if it's a support case, the judge might on his or her own enter an "evidence order."  This is an order that requires you to bring certain documents to the trial under penalty of contempt.  If an evidence order is entered, you will be given a copy, and make sure you follow it.

The other thing that can happen is that one or both parties can request that discovery be authorized.  If either party requests it, the judge will usually agree, and then discovery can be conducted.  For more on discovery, you can review my post on the topic.

Step 3:  Preparing for trial

There will usually be a good bit of time between your status conference and your trial.  During that time, you should be gathering all of your documents and evidence and lining up potential witnesses.  If discovery has been authorized, you should also promptly send out discovery requests.  If involved in a support case, you can also file a motion for pendente lite relief which may allow you to receive some support while your case is pending.

Step 4:  Trial

A trial in J&DR is a lot like a trial in any other court.  The rules of evidence, basic rules of procedure, etc. all are the same.  The petitioner presents his case first, the respondent presents his second, and then the petitioner can present rebuttal evidence.  J&DR courts are usually very overworked, however, and as a result will usually strictly stick to the time limit set at the status conference, so keep that in mind when preparing for trial.

In most cases, at the end the judge will not only rule, but will draft and enter an Order laying out his ruling right then and there.  In some cases, he might set a short hearing date a few weeks in the future to allow you and the other side to write up the order to present to the court for entry.

Step 5:  Post-trial

Remember, you have the right to appeal any J&DR ruling to the Circuit Court for a whole new trial.  To take advantage of this right, you must file your Notice of Appeal in the J&DR court (the J&DR clerk will have a copy of the Notice of Appeal form) within 10 days of entry of the final order.  You must also pay your appeal bond within 30 days of entry of that order.

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 this procedure.

• Protective Orders:  In cases involving protective orders, the process listed above is basically not followed at all.  Instead, the "Complainant" (a protective order comes from a "Complaint" instead of a "Petition") will usually go in front of a judge the day he files and get a preliminary protective order.  The hearing on the final protective order then will have to be held within fifteen days.  So, there's no status conference, no discovery, etc.  Most courts also limit protective order hearings to 30 minutes.  There is, however, still a right for the losing party to appeal to the Circuit Court, although there will be no (or a very low) appeal bond.  For more on protective orders, you can review my post on the topic.
• Modification Proceedings:  If, instead of filing an initial petition, you are seeking to modify an already existing order, the procedures vary dramatically from county to county.  In Fairfax County, the procedures are actually largely the same, but in many counties you are required to pick the status conference date and/or you are required to serve the papers on the other side.

Conclusion

Practice in J&DR is, in many ways, simpler than in the other courts.  You have a status conference to help guide you along to trial, and it's possible for the pre-trial process to be fairly simple.  Nonetheless, J&DR is full of its own pitfalls, especially is discovery is authorized, motions filed, or similar issues come up.  As a result, it is still best to proceed with an attorney.  If you have a case coming up or that you wish to file in J&DR, 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!

Virginia Trial Courts - An Introduction

As always, before reading this post, please review 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

Most of you who have been reading my blog for some time have seen me discuss on and off the various trial courts we have in Virginia.  This can confuse many people, because most people not familiar with the law do not realize we have three separate and distinct trial courts.  I have decided it is time for me to go into more detail, so I've planned a four-week, four part blog series to discuss this.  Today, I will provide some basic background for each of the courts and talk about what kinds of cases those courts hear.  For the next three weeks, I will go into depth in how civil (so not criminal, which I do not practice) cases are handled from beginning to end in each court.

So what are the three courts anyways?

If you're new to this blog, you may not realize that we have three separate and distinct trial courts in Virginia.  The Circuit Court, the General District Court (GDC), and the Juvenile and Domestic Relations District Court (J&DR) are each different courts with (usually) different courtrooms and (always) different judges.  The General District Court also has a small claims division, which is the small claims court in Virginia, but that is not a separate court, as the small claims division still meets in General District courtrooms and is overseen by General District Court judges.

The Circuit Court is the "highest" trial court.  Its orders hold precedence over conflicting GDC and J&DR orders unless the GDC or J&DR court orders come after the Circuit Court order and the Circuit Court had yielded jurisdiction to the district court.  The Circuit Court is also our "court of record," while the GDC and J&DR courts are "courts not of record."  This is a distinction that used to be much more meaningful - courts of record would have a record of proceedings kept, while courts not of record would not - but since the advent of computers, most courts not of record still maintain an active record of their proceedings and hold on to exhibits for at least some time.

Perhaps the biggest difference between the Circuit Court and the GDC and J&DR courts are that the Circuit Court is the only trial court in which your case can be heard by a jury.  You might think that this is unconstitutional considering the kinds of cases GDC and J&DR can hear (which I will get to shortly), but the reason it is acceptable is that cases from the GDC and J&DR courts can be appealed to the Circuit Court, and when they are, you get a whole new trial in the Circuit Court (as though the GDC or J&DR trial never happened), where you can get a jury.

What kinds of cases does the Circuit Court hear?

So, the Circuit Court is the Virginia trial court of "general jurisdiction."  That means the Circuit Court has jurisdiction over all matters that can be heard in a trial court in Virginia.  That being said, Circuit Courts have three kinds of jurisdiction:  exclusive jurisdiction, concurrent jurisdiction, and appellate jurisdiction.

Cases over which a Circuit Court has exclusive jurisdiction are cases that can only be heard in the Circuit Court.  These include, but are not limited to, adult felony trials (including juveniles charged as an adult), divorces, appeals from a ruling of your local Board of Zoning Appeals, almost all lawsuits that are cases "in equity" (for a brief, albeit incomplete, explanation of cases "at law" vs. cases "in equity" you can review this blog post), and almost all lawsuits for money where the base amount of compensatory damages being sought is more than $25,000.

Cases over which a Circuit Court has concurrent jurisdiction are cases that can be filed either in the Circuit Court or in a lower court, at the discretion of the person filing (although there are some rules about how this actually works).  These cases include, but are not limited to, child support cases between married parents who are getting divorced (concurrent with the J&DR court), child custody/visitation cases between married parents who are getting divorced (concurrent with the J&DR Court), spousal support cases (concurrent with the J&DR court; in the Circuit Court this can come in the form of a divorce or a complaint for "separate maintenance"), and almost all lawsuits for money where the base amount of compensatory damages being sought is at least $4,500 but no more than $25,000 (concurrent with the GDC).

Finally, cases over which a Circuit Court has appellate jurisdiction are cases that must first be heard in a lower court, but can then be heard in the Circuit Court on appeal.  These cases include, but are not limited to, criminal misdemeanor trials, juvenile felony trials (where the juvenile was not charged as an adult), protective order cases, any concurrent jurisdiction case where the case was initiated in the lower court, and almost all lawsuits for money where the base amount of compensatory damages being sought is at least $50 but no more than $4,499.

What kind of cases does the General District Court hear?

So, unlike the Circuit Court, the General District Court is a court of "specific jurisdiction."  This means it can only hear cases specifically assigned to it by the Code of Virginia.

The General District Court hears preliminary hearings for all adult felony cases (except where the defendant is a juvenile, even if that juvenile is being charged as an adult) and hears criminal trials for all misdemeanors where the defendant is an adult and the victim (if there is one) is not a member of the defendant's family.

On the civil side, the General District Court's small claims division can hear any lawsuit for money where the amount being sought is $5,000 or less.  Outside the small claims division, the General District Court can hear any lawsuit for money where the amount being sought is $25,000 or less.  The General District Court can also hear unlawful detainer cases (lawsuits for eviction) in commercial landlord/tenant matters even when the amount in controversy is more than $25,000.

Finally, the other big area where the General District Court has jurisdiction is over protective orders where the defendant is not considered a "family member" (with that definition being as explained in this blog post) of the plaintiff.

The GDC has jurisdiction over a number of other matters, but those are the big ones.

What kind of cases does the J&DR Court hear?

The J&DR Court is also a court of "specific jurisdiction," though its jurisdiction is over a much broader array of cases than the GDC.  Pretty much any case you can think of involving children or domestic relations (other than divorce) can be heard in the J&DR court.

Some of the big ones that the J&DR court hears are preliminary hearings for felony cases where the Commonwealth seeks to charge a juvenile as an adult, full criminal trials for felonies committed by juveniles who are not charged as adults, full criminal trials for misdemeanors where the defendant is a juvenile or where the defendant and the victim are related (regardless of the age of the defendant), child support cases (regardless of the relationship between the parents), child custody/visitation cases (regardless of the relationship between the parents), spousal support cases, termination of parental rights cases, juvenile consent for abortion cases (cases where a pregnant juvenile wishes to have an abortion and her parents are withholding consent), and protective order cases between parties that are considered "family members" (under the definition discussed in my previous blog post).

J&DR Courts also hear cases to make the findings of fact necessary for an undocumented, unaccompanied, non-citizen minor who lives in Virginia to be eligible for Special Immigrant Juvenile Status - a type of green card available to unaccompanied minors that has become a major source of interest in recent months, as Virginia has taken in a large number of the unaccompanied children that had crossed the southern border last year.

Again, these are not the only cases J&DR Courts hear, but in my experience, they are the biggest.

How do appeals from GDC and the J&DR court work?

So, almost every trial in the GDC and J&DR courts can be appealed to the Circuit Court.  When an appeal is taken to the Circuit Court, the case is tried in the Circuit Court de novo, meaning the whole thing is done again, and the Circuit Court pretends no trial in the lower court ever happened (as opposed to an appeal from the Circuit Court to the Court of Appeals or the Virginia Supreme Court, where you must prove the Circuit Court did something wrong in order to get a new trial).  In order to take an appeal, it must be a case eligible for appeal (again, this is nearly every case the lower courts hear, although in a lawsuit for money, for example, the difference between what you wanted and what the lower court ordered must be at least $50), and you must file your notice of appeal within 10 days of the judgment of the lower court being entered.

In many civil cases, however, that does not complete your appeal - you also must "perfect" your appeal by filing an appeal bond.  If you were the civil plaintiff below, your appeal bond is usually only a filing fee ($130 or so).  If you were the defendant, however, and it was a lawsuit for money, or a support case that found you had an arrearage, your appeal bond is usually going to be the full amount the court ruled you owe, and if you don't pay that bond to the court, you cannot appeal.

Your appeal bond is generally due within 30 days from the date the lower court judgment is entered, although in unlawful detainer cases, if you are the defendant, your appeal bond is due within the same 10 days that your notice of appeal is due.

Conclusion

Virginia's trial court system can be very confusing for someone who is not an attorney - this is why I am doing this four part series.  Fortunately, attorneys are allowed to appear in all three courts, and while technically you cannot have an attorney in the GDC small claims division, if you are sued there you can get an attorney and move the case to outside the small claims division.  If you are considering filing a case and cannot figure out where it should be filed, you should strongly consider consulting an attorney.  If your case is in one of my firm's practice areas (family law, landlord/tenant law, contract law, etc.), you can 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!

Civil Discovery in Virginia - Taking the Surprise Out of Trial

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

Introduction

I'm often asked by friends who have observed or heard about a trial, how it is that one side has in their possession so many documents belonging to the other side, or so much information about the other side.  As time has gone on, it has become clearer and clearer to me that there is probably no part of civil litigation that is less well understood than discovery - the process of obtaining information in order to prepare for trial.  This is unfortunate, because, in my opinion, 80% of relevant cases that go to trial are won or lost in discovery, and if you don't have an attorney and don't understand the process, you are suddenly at a huge disadvantage.

In today's blog post, I hope to provide you with the basics of how discovery works in Virginia.

What is Discovery?

Discovery is, to some degree, what it sounds like.  It is the process by which you "discover" relevant information, documents, evidence, etc.  Now, there is discovery in criminal cases and civil cases, but as I do not practice criminal law, I am only covering civil discovery in this post.  Criminal discovery has quite a few differences.

When is Discovery available?

So, discovery is actually not always available to civil litigants.  Under the Rules of the Supreme Court of Virginia, discovery is only fully available to civil litigants going to trial in the Circuit Court (for a reminder of what the various trial courts in Virginia are, see this blog post).  In the Juvenile and Domestic Relations District Court, it can become partially available upon motion of a party and granting of the motion for good cause shown by the judge.  In the General District Court (both regular and small claims division), discovery is not available at all with one exception.

Now, you may remember that there is something called an "appeal of right" from the Juvenile and Domestic Relations District Court and the General District Court (again both regular and small claims division) to the Circuit Court, where a whole new trial would be held.  If you have such a case - you already had a trial in the J&DR or General District Court and now it's been appealed to the Circuit Court - discovery is available during that appeal.  Again, when you appeal to the Circuit Court, you basically act like the lower court trial never happened, and you're just having a regular trial in the Circuit Court.

Ok, so how does discovery work?

So, discovery works by you, or your attorney, sending out various documents that require responses in various forms, response to which can be compelled by law.  There are five forms of discovery in Virginia, each providing different bits of value to a case:  Interrogatories, Requests for Production, Requests for Admission, Subpoena for Documents, and Depositions.  Regarding the previous section of this post, depositions are not allowed in the J&DR Court, even when discovery has otherwise been authorized, but subpoenas for documents are always allowed, and the other three forms are allowed when discovery is authorized.  In the General District Court, subpoenas for documents are allowed, but the other four forms are never allowed.  Here's how each type works:

• Interrogatories:  Interrogatories allow you, or your attorney, to serve questions on the other side, which must be answered under oath.  This is a good way to get some basic information (bank account balances, their position on different issues, etc.), and an early idea of what kinds of things they might say on the witness stand.  Interrogatories must be responded to and signed under oath within 21 days (with some exceptions) of being served.  You are limited, however, to only asking 30 Interrogatories (and each sub-part of an interrogatory counts as a separate one) unless you get prior permission from the court to ask more.
• Requests for Production:  Requests for production allow you, or your attorney, to serve a list of items (documents, items, videos, etc.) on the other side which they then must allow you either access to, or send you copies of.  The access must be granted, or the copies received, within 21 days (with some exceptions) of the requests being served.  There are no limits to the number of Requests for Production.
• Requests for Admission:  Requests for admission allow you, or your attorney, to serve a list of statements on the other side, which they must admit are true, or deny being true.  If admitted, that fact is accepted as true for the remainder of the case, and cannot later be denied.  This is a fantastic way to get certain undisputed facts out of the way, and to authenticate documents and other evidence.  Additionally, failure to respond to Requests for Admission within 21 days (with some exceptions) is automatically considered an admission of each statement.  There are no limits to the number of Requests for Admission.  [Please note that effective July 1, 2015, this is scheduled to change.  After July 1, 2015, you will still be allowed to ask an unlimited number of Requests for Admission which are solely for the purpose of authenticating documents, but all other Requests for Admission will be limited to 30.]
• Subpoena for Documents:  A subpoena for documents allows you, or your attorney, to serve a list of items (documents, items, videos, etc.) on the other side which they then must allow you either access to, or send you copies of.  This must be done by the date specified on the subpoena, so long as it is a reasonable amount of time after service.  This is usually used for non-parties, since it is the only way to compel them to respond, but you can serve subpoenas for documents on opposing parties as well.  Requests for Production are usually preferred where available, however, because the subpoena statute allows the requestee to refuse to respond until compensated for the time and expense of preparing the response, whereas responses to Requests for Production must be made at the requestee's expense.
• Depositions:  A deposition allows you, or your attorney, to take a witness's sworn testimony prior to trial, usually in the office of the deposing attorney.  A deposition can be taken of either party, or non-parties (compelled to attend by subpoena).  A deposition is a good tool for previewing what a witness might say on the stand, or learning information that might be worth following up on with further discovery and investigation.  A deposition generally cannot be used in place of testimony at trial unless a special circumstance exists, the use is agreed to by opposing counsel, or it is being used solely to impeach the credibility of a witness if the deposition being used is of that same witness.

What happens if the other side/non-party witness won't cooperate with Discovery?

There are a number of remedies available when the other side doesn't comply with discovery.  With Requests for Admission, you can simply request the court treat all statements as admitted, and that's that.  As an additional note, if someone denies a statement in a Request for Admission that is later proven true, you can recover your attorneys' fees for the cost it took to prove that statement true.

For Interrogatories, Requests for Production, a subpoena for documents issued to the other party, or a notice of deposition issued to the other party, you can file a Motion to Compel.  This is a motion asking the court to order the other side to comply.  As an added bonus, barring some substantial justification for the other party's actions, the court is required to award you your attorneys' fees expended for bringing the motion to compel.  If they still don't comply with the Compel Order, you can file a Motion for Sanctions, where the court gets a great deal of latitude for what it can do, ranging from barring a side from contradicting your evidence or presenting evidence on a certain topic, barring a side from presenting evidence or witnesses at trial altogether, or even dismissing a case outright.

For subpoenas for documents, or subpoenas to appear at a deposition, issued to non-parties, you can file for a Rule to Show Cause with the court.  A Rule to Show Cause requires the subpoenaed person to appear before the court and explain why they should not be held in contempt.  If they can't do that, they could very well be held in contempt and sent to jail (or face other penalties), although a judge will usually give them a chance to come into compliance first.  If they do not show up for the Show Cause hearing, a capias (bench warrant) for their arrest will be issued.

As a final note, if it turns out another side has intentionally withheld documents in bad faith (for example, by pretending they don't exist, rather than stating a good faith objection to providing them), sanctions can be quite harsh.  A false statement in response to Interrogatories, since they are signed under oath, or in response to a question during a deposition, can be grounds for a perjury prosecution.

What should I do if I've been asked questions I don't think I should have to answer?

Well, let me start off by saying that discovery is very broad.  Something does not have to be admissible at trial for it to be discoverable.  Something does not even have to be relevant to your case - so long as it is calculated to lead to relevant evidence.  For example, your best friend's address and contact number may not be relevant information to your divorce case, but if your best friend knows who you've been having an affair with, and the other side needs that address and contact number to get in touch with your best friend and find out, then that information is calculated to lead to relevant evidence and is discoverable.

Still, discovery is not an excuse to completely upend your life.  If something is not reasonably calculated to lead to admissible evidence, or it seeks information that would violate attorney-client privilege, or it is clearly designed just to harass you, for example, you can simply respond to that request by objecting and stating your objection.  They may file a motion to compel, at which time the court will rule on your objection, but you will not be penalized extra for not answering when you did, in fact, object.  There are a whole range of reasons you can object to discovery, and I can't get into them here, so I would advise consulting an attorney if you are trying to figure out how to respond.

Now, if you are a non-party subpoenaed for documents or for a deposition, the process is a little more complicated.  Rather than objecting, you must file with the court a Motion to Quash your subpoena.  The court will then decide if the subpoena should be quashed (treated as though it never existed), partially quashed, or completely allowed.  Again, there could be any number of reasons for a potential motion to quash, so you should consider consulting an attorney.

I think I have to answer this question, but I am terrified of what might happen if my answer gets out to the public.  What can I do?

So, sometimes discovery requires us to turn over private, embarrassing information.  Given that our trials are generally public record, and the other side may not have the same incentives for protecting information that you do, this means that information could get out to the public.  Fortunately, there is an option - you can file a motion for a protective order.

Now, in discovery, a protective order is nothing like what we normally call a "protective order" - which is a personal restraining order.  A discovery protective order allows the court to place restrictions on discovery, such as forbidding a side from publicly disclosing information they receive in discovery.  In some cases, a judge can even forbid a lawyer receiving a discovery response from sharing it with his or her client.

That being said, you must understand that in America we take the non-secrecy of our courts very seriously, and a protective order won't be issued lightly.  You have to make a fairly compelling case for one - that you would be very likely to be substantially harmed by the public dissemination of this information.  You are most likely to succeed if we are talking about something like medical records, or other things that we have a long public policy of allowing people to keep private.  Just because something is embarrassing, however, is not going to be enough.  Additionally, a protective order will not be issued just to protect you from your own wrongdoing - the classic example of this in family law is someone whose employment contract includes a "morality clause," and they could be fired if their employer found out they committed adultery.  In that case, a protective order is still unlikely to be issued.

Conclusion

Discovery is a long and often tedious process.  Nonetheless, it is typically the most important part of a case.  Doing it wrong, could cost you far more than you think.  If you have a case that is discovery eligible, you would be well advised to have an attorney.  If you'd like to speak to one about discovery, check out my initial consultation policy above, and if you're eligible, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour.

Call for Guest Posts

Instead of doing a "classic" post today, I wanted to take this opportunity to put out a call for anyone interested in doing a guest post on this blog.  I've just recently investigated the idea, and think it would provide some value to my readers to be able to put up a relevant guest post on occasion.  By "relevant" I would mean a post from someone with some level of expertise on topics I cover.  A non-exhaustive list of examples would be a tax accountant talking about the impact separation and divorce has on taxes, a financial planner talking about updating your financial plans following the property division that comes with a divorce, a realtor talking about picking out investment homes to potentially rent out in the future, a criminal defense attorney going into more detail about criminal law matters I've covered, and so on.

A guest post would have advantages for everyone involved.  It would give me the opportunity to provide my readers with a perspective I cannot provide them with otherwise, it would give my readers the chance to get some extra information about topics I cover, and it would give you a chance to expose your business to my readers - which at this point is a small but steadily growing number of people across Virginia.  Because I have discovered that people all over Virginia read this blog, I do not require a guest blogger to be located in the same part of Virginia as I am - in fact, I would be thrilled to have guest bloggers from other parts of the state.

The rules would be fairly simple.  E-mail me at SLeven@thebaldwinlawfirm.com to let me know you're interested, what your expertise is, what you plan to post about, and, if I don't already know you, give me some way to verify who you are and your qualifications.  If I approve, you will write the post (800-1200 words) and e-mail it to me.  I will review it to ensure that it complies with the Virginia Rules of Professional Conduct for me to post, and if it does, I will go ahead and add a header and footer indicating who wrote it, that any opinions expressed are your own, and providing a link to your website.  I will then run it all by you for a final time, and if you approve, I will post it.  If I find that changes are necessary, I will let you know what needs to be changed.

This is a standing offer, so I do not have a deadline by which you have to let me know you're interested.  Due to the holiday, however, I do not plan to post this upcoming Thursday, and probably will not next Thursday, either, so this post should be at the top of my blog for a little while.

Virginia Commercial Landlord/Tenant Law - An Introduction

As always, before reading this post please review 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

It's no secret that I talk about landlord/tenant law on this blog a lot.  Despite landlord/tenant work being only about 30% of my practice (Family Law is about 50%, and a combination of other practice areas make up the other 20%), most of the time where I am faced with a problem caused by someone acting outside the law, it's a landlord/tenant case.  For this reason, I have not only focused on landlord/tenant law, but specifically residential landlord/tenant law - the law covering landlord/tenant relationships where the tenant lives in the leased property.  But there is a whole other field of landlord/tenant law that I work in which is also important for many people, especially small business owners, to understand - commercial landlord/tenant law.

Commercial landlord/tenant law is the law covering landlord/tenant relationships where the tenant is primarily renting the property in order to run a business out of the property.  Most businesses, especially small businesses, do not own the building or store that they operate out of, rather most rent, and commercial landlord/tenant law governs their transactions.  Commercial landlord/tenant law is, in many ways, radically different than residential landlord/tenant law, so I cannot hope to cover it all in one blog post.  Instead, today I hope to give you a brief introduction to commercial landlord/tenant law.

VRLTA vs. Title 55, Chapter 13 vs. Something else?

I have talked over and over again about how important it is to know what law governs your lease - the Virginia Residential Landlord and Tenant Act ("VRLTA") or Title 55, Chapter 13 of the Code of Virginia.  Well, for commercial leases, the answer is "neither."  Virginia Code Section 55-248.5(A)(7) explicitly excludes commercial leases from coverage under the VRLTA.  Meanwhile, while there are parts of Title 55, Chapter 13 that impose some restrictions on commercial landlord/tenant relationships, pretty much all of the important ones (5 day pay or quit notices, 21/30 notice rights, rights against self-help, etc.) are explicitly limited to residential leases.

As a result, commercial leases are almost exclusively governed by common law principles and contract law.  With rare exception, what it says in a lease goes, especially since even those Code provisions that do cover commercial leases do not have non-waiver clauses.

"Default Rules"

So, let's talk for a minute about the default rules for the common law.  In this example, you have a commercial lease that just says "Landlord leases property to tenant for tenant's business at a rate of $x per month for 12 months."  I've never seen a commercial lease like that, but it's a good starting point, because if you have a lease like that, the "default rules" apply.  The default rules are what the common law says should happen, but can be changed by provisions of the lease itself.  Here are what I consider the most important "default rules" in commercial leases:

• If the tenant breaches the lease in any way (non-payment of rent or otherwise), the landlord has the right to immediately terminate the lease without advanced notice or giving the tenant an opportunity to fix the breach.
• A landlord may self-help - he may come in, change the locks, remove all of the tenant's property, and retake possession of the property, all without going to court.
• If the landlord breaches the lease, the tenant may file a suit for rescission to have the lease terminated.  There is no such thing as a Tenant's Assertion for commercial leases.
• The tenant may not self-help by refusing to pay rent.  The tenant may self-help by fixing the problem himself and then demanding reimbursement from the landlord.
• If the landlord sues for non-payment of rent, the tenant may raise as a defense "constructive eviction," meaning flaws with the property were so serious the tenant could not continue to use the property.  Constructive eviction can negate any unpaid rent due, but it does not give the tenant a right to return to the property.
• If the landlord sues for non-payment of rent, the tenant may raise as a defense "recoupment," meaning the flaws with the property were so serious that they diminished the value of the property to the tenant and so the tenant should not have had to pay rent in full.  Recoupment can negate some or all unpaid rent, but it does not give the tenant a right to return to the property.
• Even though a landlord has the right to self-help, the landlord may still file an Unlawful Detainer in the General District Court and get a court order for possession enforced by the sheriff.  Doing this protects the landlord from potential liability for an unlawful eviction (if it later turns out the tenant was not in breach and the landlord self-helped, the landlord can get in a whole heap of trouble), and also protects the landlord from potential liability for any damage done to the tenant's personal property in the course of the eviction.
• Unlawful detainers for commercial leases are exempt from the General District Court's jurisdictional maximum of $25,000 (so, an unlawful detainer in a residential lease where more than $25,000 is owed must be filed with the Circuit Court, but a commercial lease can be filed in the General District Court no matter how much is due).

Now, you will notice that a lot of that is dramatically different from residential landlord/tenant law.  Notices are mandatory in residential law, self-help of all forms, both by landlords and tenants, is banned, and "constructive eviction" and "recoupment," while technically still available, have both been overcome by the availability of much more effective offensive - rather than defensive - tools (21/30 notices, tenant's assertions, etc.).  Similarly, rescission would also still be available but is rendered completely moot in residential law by the availability of 21/30 notices.

Typical Changes

Because the common law is so weak (I mean this in the sense that it can almost entirely be waived by contract), most commercial leases are actually very long, as businesses typically have their own way they want leases to be governed.  Moreover, the power balance between landlords and tenants is much less tilted towards landlords in commercial law than residential law, so tenants are much more likely to actively negotiate their leases.

The result of this is that many of the above common law defaults do not actually apply to commercial leases.  Most leases I have dealt with, for example, have notice provisions.  This actually makes sense even from a landlord's perspective, because an eviction is typically much more expensive than just having your tenant correct the problem.  Additionally, while few outright ban self-help, many provide incentives for not using self-help (for example, attorney's fees only being available if you go to court instead of self-helping).

The end result is that if you are analyzing a commercial landlord/tenant situation, you need to not only understand the law, but also deeply understand the lease.  In residential leases, you can ignore whole provisions since you know the law governs and cannot be waived in some instances.  You do not get that luxury with commercial leases.

Conclusion

As you can see from the above, commercial leases are really a whole separate area of landlord/tenant law than residential leases.  Very few statutes apply to them, almost everything is waivable, and there are complex common law rules that date back centuries that apply.  If you are considering drafting or signing a commercial lease, or are involved in a commercial landlord/tenant dispute and would like legal assistance, 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!

Classic Law is Your Friend: Virginia Tenant's Assertion

First of all, I realized today that I forgot to post last week.  I must send my sincerest apologies.  Last week, I had to spend all day Tuesday in a class in Washington, DC (I've just been admitted to the Bar there and am trying to get up to speed so that I can take cases there in the near future), then I was in court most of the day Thursday and Friday, so again, I am sorry about the oversight.

Today's classic blog post discusses tenant's assertions - one of the options available to tenants with abusive landlords who violate their lease and the law.  It was originally posted on November 13, 2013 and was titled "Avoiding Tenant 'Self-Help' Part 1 - Tenant's Assertions."

Where I felt it necessary, I have added a few lines here and there.  Additions that were not in the original blog post will be in brackets ([]).

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

Introduction

Most of my regular readers will remember my post from several months ago talking about how it is improper when in a landlord/tenant dispute to engage in self-help.  Self-help, again, is what happens when, without a signed agreement with the other party, and without court approval, you take action altering the terms of your lease (a non-exhaustive list of examples as a tenant is withholding rent or fixing damage yourself, while for landlords can be changing the locks, cutting off power, etc.).  If you engage in self-help, even if you are legally in the right, the consequences can be very severe - heavy imposition of damages, injunctions, attorneys' fee awards, etc.  [Not to mention eviction if you are a tenant.]  As a result, it is important you avoid self-help.

Since posting my "don't do self-help" post in July [of 2013], however, I've gotten numerous questions about what the alternatives are.  Since the alternative is generally clear for landlords (legal eviction proceedings), nearly all the questions I get, and nearly all the examples of improper self-help I see, involve tenants.  While I do present these alternatives in my July post about self-help, my presentation is short, and probably not very helpful.  As a result, starting this week, I've decided to start a multi-part series discussing each of the options available to a tenant whose landlord is in active violation of the lease.  Today's post will discuss a legal proceeding known as a "Tenant's Assertion."

VRLTA vs. Common Law/Chapter 13 Lease

Regular readers will again remember that it makes a substantial difference in many areas of landlord/tenant law whether your lease is covered by the Virginia Residential Landlord and Tenant Act, or if it is a Common Law/Chapter 13 lease.  While it is still true in this area of landlord/tenant law, this is not nearly to the extent that it used to be.  Prior to 2011, the only remedy a non-VRLTA tenant had to a breach of the lease by the landlord was an after-the-fact lawsuit for damages.  The law changed in 2011, however, and now, while not identical, the rights of tenants regarding a tenant's assertion are largely similar.  In fact, the only difference that seems relevant to me is that a non-VRLTA lease could theoretically waive the tenant's right to pursue an assertion (I say only theoretically because I am aware of no court case to this point directly dealing with that issue) while such a provision would be barred in a VRLTA lease by Va. Code Section 55-248.9(A)(1).

What Is A Tenant's Assertion?

So, before getting started, you might be wondering what a tenant's assertion actually is.  This is an action where the tenant "asserts" that the landlord is in active violation of the lease or the law, and that a remedy is necessary in order for the tenant to properly enjoy his rights to possession of the property.  A tenant's assertion is primarily for people who either want a problem fixed without having to move out of the property, or want their lease actively terminated by the court, instead of engaging in the notice termination (which I will discuss in part 2) and then potentially being sued by the landlord.  The major disadvantage is that a tenant's assertion, under either VRLTA or common law leases, usually cannot win attorneys' fees, while other actions sometimes can.  I generally recommend a tenant's assertion to tenant clients who like their home except for the issue causing their complaint, cannot find a new place to rent, or just cannot stand the thought of the uncertainty that comes with a notice termination.

Pre-Conditions to a Tenant's Assertion

The law for tenant's assertions is laid out for non-VRLTA tenants in Va. Code Section 55-225.12 and for VRLTA tenants in Va. Code Section 55-248.27.  You will notice the two sections are very similar but have some differences.  Both sections include the following required pre-conditions to a tenant's assertion:

• A condition must exist on the property that allows an assertion to be approved.  This condition must be a "material" violation of the lease or of the law, a fire hazard or serious threat to the life, health or safety of occupants, a lack of heat or hot or cold running water, a lack of light, electricity or adequate sewage disposal facilities, an infestation of rodents, or the existence of paint containing lead pigment on surfaces within the dwelling
• The landlord must have been "served" with a written notice from the tenant or a state agency of the condition and failed, within a reasonable amount of time after that service, to fix the condition (note that more than 30 days is presumed unreasonable)
• The condition must remain up to the day of the trial

Additionally, the VRLTA has these provisions (which the common law assertion does not):

• The "condition" on the property cannot be a rodent infestation if the property is a single-family dwelling (namely a detached home or townhouse).
• Va. Code Section 55-248.4 allows notices to be served simply by first-class mail as long as you also simultaneously swear out a certificate that you've sent the mail.  The non-VRLTA tenant needs to serve notice either by formal service, or by certified mail (unless he can show proof that the landlord actually received the notice).

If those pre-conditions are met, however, you can go ahead and file your tenant's assertion (note that if you file the assertion before giving the landlord a reasonable time to remedy under the assumption that any trial will occur after such amount of time has elapsed, you are in violation of the statute and could be sanctioned by the court).

While Assertion is Pending

While your tenant's assertion is pending, you must continue to pay your rent in full.  Instead of paying it to your landlord, however, you must pay it to the court.  If you don't pay your full amount of rent to the court within 5 days of its due date your assertion will be dismissed, the money you've paid to the court will be released to the landlord, and you start over again.  If you do, however, your money is held in escrow.  This is the true advantage of a tenant's assertion over an after-the-fact lawsuit.  If you win damages, your escrow gives you a source from which you can collect immediately, instead of having to engage in post-judgment collections.

Trial

Somewhere around 5 weeks after filing your assertion, assuming it is contested, you will have a trial.  It's important to note that both the VRLTA and non-VRLTA assertion statutes allow as a complete defense a landlord to say "the condition's been fixed."  This means, if the landlord fixes the problem while the assertion is pending, your assertion will lose, even if it was proper at the start!  The remedy to this is to try to convince the judge to let you amend your case to a warrant in debt for damages, then still seek any monetary damages you may have suffered (you may even be able to still pull that money out of escrow).

If, however, the condition does remain as of the date of trial, you must prove the following things in order to win your assertion:

• That the condition is, in fact, of the type listed in the statute (material noncompliance with lease or law, hazard to health and safety, etc.),
• That the condition still exists,
• That notice was properly given to the landlord, or that the landlord had actually received notice even if not properly given,
• That the landlord was given a reasonable amount of time to remedy the problem before the assertion was filed, and
• That you have paid all rent, in full, into the court while the assertion has been pending.

If you successfully show all of those things, you will win, and the judge will grant you one, some, or all of a myriad of possible remedies, which include, but are not limited to:

• Terminating the lease,
• Dividing some or all of the money in the escrow account between the tenant and/or landlord as the court sees fit,
• Ordering the escrowing of rent continue until the repairs are complete,
• Abating rent prospectively and/or retroactively,
• Ordering money in escrow be paid directly to a contractor in order to repair the property,
• Referring the matter to a state or municipal agency for investigation, and
• Ordering escrow funds be used to pay a mortgage in order to prevent foreclosure.

After Trial

It is very rare for a trial to end a tenant's assertion unless the landlord prevails.  Instead, some form of continuing of the escrow account usually occurs.  If this is the case, no escrow money can be distributed without a hearing, so there may be occasional hearings going forward to decide what to do with escrow money, or if a party is not following the terms of the order.  Perhaps the most serious issue, however, is that if the condition is not remedied within six months of the date the escrow account was established, the court is then required to return to the tenant all money then in the escrow account (unless the landlord can prove he has made a reasonable effort to finish the repairs).  When that happens, though, the escrow is not terminated, but a new six month period begins.

The assertion really does not end until the condition is repaired and/or the lease has ended, and all money in escrow has been distributed.

Conclusion

When a landlord is in violation of his lease obligations, a tenant's assertion is a very robust and flexible means for a tenant to assert his or her rights without risking a lawsuit from the landlord, and without necessarily having to terminate the tenancy.  If you are in a landlord/tenant dispute that already involves, or may require, a tenant's assertion, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to discuss representation.  Our initial consultations are free for up to half an hour!

What Happened in Ferguson and New York

Introduction

As sometimes happens on this blog, at times I feel it necessary to step out of my usual format of getting into the nitty-gritty of areas of law I practice, and talk about current events.  These posts will cover practice areas I do not practice, and do not intend to provide any practical considerations for someone going through the process - just to offer an explanation of what's happening.  These posts tend to also be imbued with my own opinions.

It's very hard right now for me to think of doing a post on something other than the events in Ferguson and New York.  Two grand juries have refused to indict two white police officers who killed two black men in the line of duty.  Since then, I have been inundated with questions from friends about what it all means and what I think.  In today's blog post, I'll cover a little bit about what happened, why I believe the grand jury got it wrong in both cases, my best guesses on why the grand juries didn't indict, and some thoughts on where the cases go from here.

So, what happened?

In Ferguson, Missouri back in August, a young black man named Michael Brown was jaywalking on a local street.  A police officer asked him to stop jaywalking, and that's about where the generally accepted version of events ends.  It picks up again with Michael Brown lying dead on the street, having been shot by the officer.  The officer claims Mr. Brown attacked him, even reaching for his gun in the police car, began to flee, then turned around and charged at the officer.  Several witnesses back up this claim.  Other witnesses, however, say that Brown was attempting to surrender, but having already had an altercation, the officer shot him dead.

In New York, back in July, Eric Garner, a middle-aged black man, was suspected by several police officers of selling loose cigarettes.  This is illegal because cigarette sales are tightly regulated and taxed, and privately selling individual cigarettes out of the pack is a form of tax evasion.  Nonetheless, it is a relatively minor crime.  Garner denied selling cigarettes, and when the officers moved to arrest him, he swatted their arms away.  Treating this as resistance, the officers attempted to force him to arrest, with one officer placing Garner in a chokehold.  Garner, who suffered from asthma, started saying over and over again (nine times in total) that he couldn't breathe, but the officer kept him in the chokehold until the other officers had him in handcuffs.  As a result, Garner went into cardiac arrest and died.  The facts are much less in dispute in Garner's case, since this was all caught on video.

In both cases, the police resisted conducting a criminal investigation at first, but public pressure finally forced them to.  In both cases, a grand jury was convened to decide whether to bring charges against the officers involved.  In both cases, the grand jury ultimately decided not to charge.

What is a "grand jury" anyways?

A grand jury (as opposed to a "petite jury," which is the technical name for a jury during a trial) is a group of citizens brought together to consider bringing criminal charges.  In many states a felony charge can only brought by a grand jury.  Grand juries are usually larger than petite juries, and usually hear more than one case when they are composed - however, if a case is especially complicated, they may hear only that one.

The only right a potential defendant has at a grand jury is to give the grand jury a statement.  Otherwise, only the prosecutor can present evidence, and the prosecutor chooses what evidence to present.  The prosecutor is not required to show a grand jury any evidence that might point to innocence.  Further, the grand jury's burden of proof is "probable cause," usually defined as saying there is enough evidence to say that a reasonable person would believe a crime has been committed.  This is a very low standard of proof.  Much lower than the "beyond a reasonable doubt" of a criminal trial, even below the "preponderance of evidence" of a civil trial.  If you were to express burdens of proof as "percent certainty" that something happened, I've usually heard it said that "beyond a reasonable doubt" is 95%, "clear and convincing evidence" is 75%, "preponderance of the evidence" is 50.1% and "probable cause" is 25%.

So, as you can imagine, the deck is usually stacked against defendants in a grand jury.  Only the prosecutor presents evidence, he can choose what evidence to present, and the jurors basically need to think there's only about a 25% chance that a crime was committed to indict.

Why I think the grand juries got it wrong

I've looked at the documents and evidence presented to the grand jury in Ferguson.  That information still hasn't been released in New York, but we do have a pretty clear picture of events from the video.  I am convinced the grand juries made the wrong decision in both cases.

In Ferguson, there was conflicting testimony as to what occurred.  That being said, conflicting testimony shouldn't matter at the grand jury stage - judging which witnesses are more credible is for a petite jury at trial, not a grand jury.  Instead, the grand jury needs only look at the evidence to see if there is enough there to say there's a probable cause of criminal action.  We had witnesses who stated that Mr. Brown was surrendering (suggesting, at a minimum, negligent homicide), and combined with a clean toxicology report and the fact that Mr. Brown suffered multiple gunshot wounds, that should have been more than enough to say there was probable cause for an indictment.  It's entirely possible, I'd even say probable, that a trial would have resulted in a not guilty verdict given the high burden of proof there, but again, the grand jury's job is only to determine probable cause, and there was plenty of it here.

The New York decision is even more baffling, considering it was caught on tape and minimal facts are in dispute.  I do not doubt the officer's account that he did not mean to harm Mr. Garner, but intent only matters for murder charges, not manslaughter or other charges that could be brought.  Mr. Garner is clearly audible that he can't breathe, and chokeholds have actually been banned within the NYPD since the 1990's.  Again, those facts alone, especially coupled with the medical examiner's finding that the cause of death was homicide, amount to fairly clear probable cause.

So what went wrong?

Well, as you can imagine, the vast, overwhelming number of cases that go to grand juries return indictments.  I've once heard the number 99% thrown around, but I don't have evidence to back that up.  However, in several studies, grand juries have been found to almost never return indictments against police officers who kill in the line of duty.  Interestingly, this seems to be little affected by race, of the officer or the victim - the grand juries actually seem more blinded by police blue than any other color.  The racial aspect seems to exist more in the fact that police officers are substantially more likely to kill black men than anyone else in the first place, rather than in how the grand jury handles it.

So, why is the indictment rate so low for police officers?  Well, frankly, people respect police officers, are inclined to believe them, and prosecutors who work with the local police every day of the week are very disinterested in prosecuting them.  This is why special prosecutors are usually needed, but almost never actually brought in.

Consider Ferguson for a moment.  Remember what I said about there being conflicting testimony?  Why did the grand jury even hear about it?  Again, prosecutors control what the grand juries hear, the only right an accused has is to present his own statement.  In Ferguson, however, the prosecutor presented the grand jury with the entire case, including statements from witnesses who agreed with the police officer's account.  While the grand jury, as I explained above, should have dismissed those witnesses anyways, the prosecutor should never have presented him - I would even say that it seems like dereliction of duty that he did.  It is hard to read anything into that choice other than that the prosecutor was intentionally trying to make the grand jury uncomfortable with the idea of indicting the officer.

Prosecutors who tank cases and citizens who trust the police make a dangerous combination for a grand jury.  If you want my opinion of why grand juries tend not to indict police officers - that combination is it.

What happens next?

So, what's next in these cases?  Well, what many people don't realize is that the decision not to indict is not like an acquittal.  Because the accused never had a chance of actually being sentenced to jail time from a grand jury hearing, "jeopardy" never "attached."  I could write entire blog posts about what that means, but the short answer is that there is no double jeopardy implication.  If a prosecutor wanted to, or a governor wanted to appoint a special prosecutor, a new grand jury could be convened.  Further, both officers are being investigated for committing possible civil rights violations.  That's important because civil rights violations are federal crimes, and federal prosecutors don't have relationships with local police like state prosecutors do.  As I recall, in fact, most of the time when police officers have actually been convicted for killing on the job, it's been in federal court (for example, many people don't remember that after the four officers accused of beating Rodney King were acquitted, touching off the Los Angeles Riots, three of them were indicted in federal court, with two of them ultimately being convicted and sent to jail).

In addition to possible federal charges or even a new state grand jury, the families of both Brown and Wilson have the right to file civil lawsuits against the officers and police forces for "wrongful death."  Such civil cases have had some success in the past, and I would not be surprised if either family went forward with such an approach.

Conclusion

The events in Ferguson and New York can be very confusing to people who don't know the law.  Some don't understand what a grand jury is, others don't understand how people could say the grand jury got it wrong.  In this post, I hope I've at least touched on an explanation for those of you who may be confused.