Hiring a Lawyer - Making the Most of your Initial Consultation

As always, before reading my 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

Let's say you have a legal crisis.  You have been arrested, you have been sued, you need to sue someone, you need a divorce - whatever it may be, you are in a bad place and need to turn to the legal system to help you.  After reviewing your options, you decide you need to have a lawyer.  How do you pick who will represent you?  Well, for most people, after doing research, talking to friends, looking online and so on, they will call a lawyer's office (or several, so they can compare) and set up an initial consultation.  In that initial consultation, they will seek to learn what the lawyer can do for them, and decide whether or not to actually hire that lawyer.

Many lawyers (my firm included) offer free initial consultations, but most do not.  That being said, most of the ones that do not offer free initial consultations still charge a discounted rate for the initial consultation.  Regardless of whether or not you are paying, however, the vast majority of initial consultations are limited to half an hour.  In this blog post, I will discuss what to do and what to look for so that you can use your half hour to convey to the lawyer the most information possible, get from the lawyer the most information possible, and help you make an informed decision about whether or not to hire that lawyer.

What you should bring to your consultation

In some ways, your consultation begins before you even leave home.  This is because you need to decide what to bring with you to the consultation.  While it is hard to make generalizations about what you should bring (each case usually has its own requirements), you should bring all relevant documents.  If you're being sued, for example, at a minimum you should bring the papers that were served on you.  If involved in a contract dispute, bring the contract.  Any documents relating to the case that have been given to you by the other side, any formal documents you have sent the other side, etc.

If you are uncertain, usually when you schedule your appointment you can ask the receptionist what to bring.  The receptionist will usually have a list, or be able to get one quickly from the lawyer you will be meeting with.  It is very important, however, that you bring these relevant documents.  I've had way too many consultations with people who wanted me to assess their liability under documents that I didn't have in front of me to review, and by the time they got them to me, they'd already used up their free consultation.

Introduction and Background - 3 minutes

To lead off your consultation, don't talk about the case itself too much.  Instead, let the lawyer know who you are.  What got you to where you are at today, what has been going on in the days, months, even years leading up to the legal situation you are in.  Why might this have happened?  What might have been done to avoid it?

This background information lets us get a firmer grasp on the case than if we just dove right in, and also opens up potential ideas for settlement right from the start.  For example, when I represent tenants, two tenants with the exact same problem might have very different needs - one who has been a happy tenant for years and this is the first problem to ever arise may just need the problem fixed, while one who has been miserable and this is the straw breaking the camel's back may be more in need of terminating the lease than getting the problem fixed.

Ultimately, you should aim for the introduction and background portion of your consult to be around 3 minutes long.  As you can tell, this leaves room for some detail, but not painstaking, extensive details.

Details of your situation - 7 minutes

The next seven minutes or so of your consult should be a discussion of exactly why you're there.  Tell the lawyer what situation you are in, what has transpired so far, what efforts (if any) you have made to resolve your situation, and give the lawyer the documents you brought to review.  Talk to the lawyer about what your position is on any allegations made, or what allegations you have to make.  This is, in many ways, the "meat" of your consultation - the part that lets the lawyer know what's really going on.  This is where we learn what kind of case we are truly facing.

Outline your goals - 3 minutes

Spend the next three minutes talking about what you want.  Provide the lawyer the "best-case scenario" - the outcome that gives you everything you want.  But also provide the lawyer your "minimum" scenario - what is the least you'd be ok with to resolve this matter.  Talk about what it is you really want to get out of your case.

Discussion with lawyer - 7 minutes

At this point, the lawyer should have all he needs to start presenting to you what he can do for you.  Give the lawyer this opportunity to outline to you his analysis of your case, your legal strengths and weaknesses, and the outline of his proposed strategy.  Feel free to interrupt with questions throughout this time period.

The "cost" discussion - 2 minutes

With 2/3 of your consultation now done, this is the point at which to direct the lawyer to discuss how much this is all going to cost you.  The lawyer should outline the fee, the basis for the fee, how much of a deposit you will be paying, etc.

Question and answer session - 8 minutes

The rest of your consultation should be spent with the lawyer answering any and all questions you have.  These questions should range from questions about your case itself to questions about how the lawyer will handle your case and how you will be billed.  This should give you the final pieces of information you need in order to make your decision.

Some questions to ask

So, having never spoken to a lawyer before, it's natural to not know what kinds of questions you should be asking that lawyer.  Here are some of the basic questions that I think everyone should be asking in an initial consultation:

• Will you be the lawyer representing me, or will it be someone else in the firm?
• How much of the work will be done by legal assistants/paralegals?
• (For hourly rate cases) What is the hourly rate for each attorney and legal assistant/paralegal in the office?
• What is the minimum time charge per task (or "to how many minutes is your work rounded when billing")?
• Is my fee deposit refundable?
• Is your billing rate negotiable?
• How many cases in this practice area have you handled before?
• How many cases like mine have you handled before?
• How quickly do you typically respond to phone calls and e-mails?
• How many active cases are you handling right now?
• If you were in my shoes, and you couldn't hire yourself or your firm, what attorney/firm would you hire to represent you?
• What do you do to stay on top of changes in the law?
• From what you know of my case so far, what is my worst case scenario?
• If you were representing the other side, how would you argue their case?

Look for specific answers to these questions.  A lawyer who is being evasive may be hiding something from you ("it's hard to predict" or "it depends" are perfectly reasonable answers, but shifting subjects, downplaying your question, etc. is not).  If another lawyer will be handling most of your case, ask some of the above questions about that lawyer.

Be skeptical if the lawyer gives a large number or says "a lot" to the "how many cases like mine have you handled" question - every case is unique, and a lawyer should make clear that he understands that he probably hasn't handled a case just like yours before.  A lawyer unable to point to other lawyers who are good is one you should also be wary of - chances are this means the lawyer has been over-emphasizing self-promotion throughout your consultation.  Similarly, be wary of a lawyer who cannot put together a reasonably strong argument in support of the other side - he is much more likely to be blind-sided while preparing your case.

Conclusion

Hiring a lawyer can be a very scary prospect for those going through the legal system for the first time.  Much of the purpose of an initial consultation is to help guide you through that process so you can be comfortable with your choice.  If you are in a legal crisis in a practice area we handle (family law, landlord/tenant law, contract disputes, appellate litigation, etc.), please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up your initial consultation.  Initial consultations at our office are free for up to half an hour!

Getting More for Less - Some Good Reasons to Hire a Small Law Firm

As always, please review my disclaimer before reading this post 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

In looking over my old blog posts today, it occurred to me that I have spent a great deal of time now discussing the law and the details of practicing law.  It has been months, possibly even years, since I last talked about relationships between attorneys and clients.  Today I want to change that.

I have never hidden the fact that I am not one of these fancy, wealthy, big law, big city, workaholic attorneys.  I work for a small law firm, generally handle my cases entirely on my own, work five days a week, and get home in time for dinner with my family almost every night.  The experiences of a small law attorney is very different than the attorneys portrayed on TV.  Our clients frequently are different, too.  Our clients are generally reliably middle class - too poor to afford the fancy downtown law firms, not nearly poor enough to qualify for pro bono assistance.  Given the size of the various "classes" in America, then, it should be no surprise that, in actuality, the vast majority of attorneys work for small law firms, and the vast majority of people who retain attorneys, retain attorneys from small law firms.

Nonetheless, that snapshot of our client base is not complete.  We do, on occasion, get the Fortune 500 executive, large business owner, or wealthy inheritor in our doors, even though they could afford those downtown attorneys.  On one occasion, I asked one of our wealthier clients why he chose to "go small."  His answer ("I want an attorney who's actually been in front of a judge before") made me realize something I hadn't thought about before - even when you have the option, financially, to retain a large law firm, there are actually many reasons to still go with a small law firm.

In today's blog post, I will discuss some of the reasons that I, personally, feel like "going small" is frequently the right choice.

Some basic background

To lead off, I want to be clear that there are many situations where, if you can afford representation from a big law firm, that is probably the direction to go.  Multi-million dollar mergers and acquisitions, extremely complicated lawsuits with millions of pages of documents, and other high-end business representation is typically best served by big law firms.  By and large, this blog post will be talking about personal litigation.  As in cases where you, yourself (not your business) are the party involved.  While some of this can apply to business litigation and other business work as well, by and large, I am referring to personal matters in this post.

"Going small" supports your community

This might be an odd point, but it's worth considering.  There has been a growing appreciation over the last decade or so for "small businesses."  This is a well-placed appreciation.  Small businesses keep money local, help our local community (by hiring people) and help our local economy (by spending money within the community).

It may be odd to think of us this way, but small law firms are small businesses.  A small law firm rarely has more than one office, all of its money tends to be spent locally, and all of its employees (including the lawyers) live locally and spend locally.  Just as with any other small business, when you retain a small law firm you are supporting your local community and local economy in a way that you simply don't when you hire a large law firm.

You get more varied experience for less money

In small law, since we generally do not have wealthy clients, we have to rely on having a large volume of cases to keep our lights on.  The result is that we tend to see a much wider variety of cases than your typical big law firm does, meaning that we could very well be more prepared for the issues to arise in your case than a big law attorney would be.  All of that, even though we cost less than our big law counterparts.

You get more practical experience for less money

I have been practicing law for more than four years now.  In that time, I have appeared in court hundreds of times, argued contested hearings scores of times, and handled numerous contested trials (even multi-day trials), all by myself.  My classmates from law school who are in large law firms by and large haven't even seen the inside of a courtroom yet - and they're the ones in their firm's "litigation" practice - but their billing rate is substantially higher than mine.  You can pay less money by hiring a small law attorney with the same number of years of experience, and substantially more practical courtroom experience, or you can spend a similar amount of money to hire a small law attorney with many more years of experience, and incalculably more courtroom experience.

We get to know you and your whole case

I spent the summer after my second year of law school in a large law firm.  You've probably heard of the "gilded" summer associateships at big law firms - the ones with the obscenely expensive events, obscenely high pay, ridiculously garish parties, etc.  Well, I had one of those.  It was an amazing summer, an experience I will truly never forget, and one that I cherish to this day for a lot of reasons.  What I will also never forget, however, is how we handled clients.  Clients weren't really clients, they were numbers.  I would enter into a database the "client number" for all client work I had done that day, and I would know basically nothing about the case except for the particular issue I was working on.

In small law, I know the client, I know the case, and I know every issue in the case.  If you want to know what's going on in your case, you can call me and get an answer from me, not some junior associate who's only worked on one element of your case.  That's the kind of personal relationship you rarely get with an attorney in big law.

Conclusion

The reality is, even when you have a choice, there are lots of reasons to choose to hire a small law attorney over a big law attorney.  This blog post has summarized some of them, but there are more.  If you are searching for an attorney and have a choice, I hope you "go small."  If you want to learn more about what we can offer, 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 (something else you generally won't get with big law)!

If I Get Divorced Am I Getting Deported? A Guest Post on the Intersection of Family and Immigration Law

As always, before reading this post, please review my disclaimer by clicking on the link above, or by clicking on this link.  The statements made in this blog post are those of the posts author.  The owner of this blog does not endorse the content of the post, as it relates to fields of practice that the owner of the blog does not practice and cannot independently vouch for the accuracy of.  Any opinions expressed in the post are solely those of the post's author.

Introduction

Today's blog post is a guest post by James Montana, a DC-based immigration attorney who practices law with the Catholic Charities of the Archdiocese of Washington and also conducts his own private practice.  He has agreed to write this post about a topic which I believe I, and most other family law attorneys (especially in the DC area), really need to know more about - specifically the impact of a divorce on the immigration status of a spouse who came to the United States on a spouse or fiancée visa.  Mr. Montana can be reached by e-mail at MontanaLawPLLC@gmail.com or by phone at (888)389-8655.  I have known Mr. Montana for more than 15 years, and certainly feel like he is the kind of person you would want to have fighting for you.

The Problem:  Complex Immigration Laws for Vulnerable People

American immigration law is complex. How complex? As a panel of federal appellate judge once put it, “[w]e have had occasion to note the striking resemblance between some of the laws we are called upon to interpret and King Minos's labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress's ingenuity in passing statutes certain to accelerate the aging process of judges. In this instance, Congress, pursuant to its virtually unfettered power to exclude or deport natives of other countries, and apparently confident of the aphorism that human skill, properly applied, can resolve any enigma that human inventiveness can create, has enacted a baffling skein of provisions for the I.N.S. and courts to disentangle.” Lok v. INS, 548 F. 2d 37 (1977).

If you are an immigrant to the United States, you face the same “baffling skein” that confronts our federal judges when you interact with our immigration system, but without our judges’ training and linguistic advantages. You may not be familiar with the American legal system and you may not be a native speaker of English. Keep those complexities and your own potential vulnerabilities in mind as you read this and other written commentary about our immigration system. You are always best-served in these matters by a private consultation with a qualified attorney.

In this entry, I will discuss the effect of divorce on noncitizen immigrants. Family-based immigration is the most common way that non-citizens become lawful permanent residents of the United States, and spousal petitions are one of the most important avenues within immigration law. Marriages do not always work out well, though, and families of mixed origin are not immune to the tragedy of divorce. In addition to the usual considerations in family court, which you would do well to discuss with a family lawyer, non-citizens should consider carefully the potential immigration consequences of divorce. To repeat, you should seek a separate consultation with an immigration lawyer, but, as a general guide, here are a few questions to think about before you seek a divorce.

Are you being abused by your U.S. citizen spouse, or were you abused by your U.S. citizen spouse in the past?

See to your safety first and the safety of any children in the family. Your immigration worries can wait. Call the National Domestic Violence hotline at (800) 799-SAFE, or, if you live in Washington, call House of Ruth at (202)667-7001.

Once you are in a safe and stable place, and you are ready to think about potential avenues forward, consult with an immigration attorney. The Violence Against Women Act offers avenues for relief, including employment authorization and relief from removal, which may help you to get back on your feet and become a lawful permanent resident of the United States. If you are an abused man, the Violence Against Women Act can help you, too; I have been involved in several cases in which abused men sought help and successfully obtained lawful permanent residency through this Act.

Are you on a K-1 visa?

A U.S. citizen may petition for an alien fiancé(e) through the use of Form I-129F. If admitted, the alien fiancé(e) must marry the citizen petitioner within ninety days of admission into the United States, and then the alien must apply for adjustment of status to permanent residency. Otherwise,the alien’s nonimmigrant K-1 visa will terminate, and then the alien will be without lawful immigration status.

If you arrive on a K-1 visa and discover that your fiancé(e) may not be the right person for you to marry, think very carefully about what to do next. The first and best option, from the perspective of the immigration laws, is to seek counseling, work out your differences, and marry as planned. If that is impossible, consider the immigration consequences of not marrying within the terms of your K-1 visa: You will not be able to adjust status to permanent residency, even upon a subsequent marriage to another U.S. citizen; you will not be able to receive employment authorization; you will become deportable from the United States once your K-1 status expires.

Is your adjustment of status application pending?

If you filed an adjustment of status application based on your marriage to a U.S. citizen spouse, and you are now thinking about a divorce, think very carefully indeed. Under most circumstances, divorce will end your spouse’s ability to petition for you, and your adjustment of status application will be denied. You may then be referred to immigration court, where an immigration judge will determine whether you are removed from the United States.

Are you a conditional lawful permanent resident?

If you already have a green card, you may feel safe in applying for a divorce. The degree of safety depends on whether you are a conditional lawful permanent resident or not. You can tell whether you are a conditional lawful permanent resident by looking at your green card approval notice on Form I-797C. You can also take a look at your green card itself; if it is marked CATEGORY: CR1, you are a conditional lawful permanent resident.

If you are a conditional lawful permanent resident, you are obliged to file Form I-751 in the ninety day period before the two-year anniversary of your green card approval date. If Form I-751 is approved, your green card status will become truly permanent. Divorce does not terminate this obligation, and you may apply to lift the conditions of your green card status even if you have divorced your U.S. citizen petitioner. Doing so will require showing (1) that you are divorced, and (2) that you got married in good faith, which can be difficult without the cooperation of your ex-spouse. Tread carefully and seek appropriate legal counsel.

What might your spouse or ex-spouse say to the government if the government called to ask about the marriage?

No matter where you are in the immigration system, divorce can lead to painful questions by the government. Those questions do not always occur in your presence in the interview room; indeed, the government has the right to call your spouse (or ex-spouse) and will do so if the government suspects fraud. Angry people sometimes lash out against an ex-spouse by telling the government that the marriage was fraudulent from the beginning. It is worth discussing, in advance, with your spouse or ex-spouse, what to do if the government calls.

I am satisfied that my immigration status is safe. Can I get a divorce?

Yes, you can. You can get a divorce even if you are not a citizen of the United States. You have access to the U.S. legal system as a non-citizen, and you should not fear arrest by the Department of Homeland Security simply for availing yourself of your access to the U.S. civil court system.

What if I was married in my home country. Can I get a divorce here?

Yes, you can. Talk to a family lawyer about the appropriate procedure in your home state, but know that the U.S. immigration authorities will recognize the validity of a U.S. divorce for the purpose of ending a foreign marriage. Your home country’s laws may differ. Naturally I cannot speak to those.

Conclusion

Divorce is a complex area of law, and it can be even more treacherous for immigrants to the United States. If you need an immigration consultation, please feel free to email me at MontanaLawPLLC@gmail.com or call me at (888)389-8655. If you need a family law consultation, set up a consultation with Samuel Leven, or his firm, by calling (703)281-0134 or e-mailing him at SLeven@thebaldwinlawfirm.com. His firm’s initial consultations are free for up to half an hour!

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!

Virginia General District Court - Trying Civil Cases in GDC

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

Two 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.  Last week, I covered trying civil cases in the Juvenile and Domestic Relations District Court.  Today, I will cover trying cases in the General District Court, or GDC.

Differences from County to County

Like the J&DR Court, there are some procedural differences between counties.  Those differences, however, are relatively minor compared to the differences you encounter in J&DR.  As a result, while I will again focus on the procedures in Fairfax County, this time you can be fairly confident that your court's procedures will be similar, if not identical.

Typical Case

Again, like the J&DR Court, different kinds of General District Court cases have different 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.

In GDC, I would consider a "typical" case to be a regular lawsuit for money.

Step 1:  File your Warrant

Ok, if you thought a "petition" was odd in J&DR, what on earth is a "warrant" doing in civil court?  Well, despite how common culture treats the word "warrant" all that the term "warrant" actually means is "authorization."  So, a "search warrant" is authorization to conduct a search, and an "arrest warrant" is an authorization to arrest someone.  In civil law, you can file a "warrant in debt" which authorizes the court to summon an alleged debtor to court to answer your charge that he or she owes you money.

Now, "warrant in debt" is a very old term that is basically used nowhere except in Virginia.  Even in Virginia, it is really only used in General District Court.  The reason for this is that lawsuits are almost always initiated by what is called a "Complaint" nowadays, but in the GDC, a warrant in debt is still standard due to the forms put out by the Commonwealth.

The GDC often calls itself a "form-based" court.  This is because the Virginia Courts have put out a whole series of "forms" that are basically just fill in the blank forms for just about every type of case the GDC has power over.  If there's not a form for it, you probably can't do it in GDC.  Their form for initiating a lawsuit, then, remains as it has been for decades - a "warrant in debt."  So, the result is you still typically file a warrant in debt in GDC.

So, to find the warrant in debt form to fill out, you can go here, scroll down to the warrant in debt form, and fill it out with the correct information about your case.  You will also want to complete a servicemember affidavit (form DC-418), though you need to sign that form in front of a notary or the clerk of the court.

After your paperwork is complete, take your forms and your filing fee (fee varies by county) and service fee and go to your local GDC civil division to file.

Step 2:  Set your Return Date

The next step will be to set your return date.  In some counties, you choose this date from a list of available dates you can get from the court.  In others, the court chooses it for you.  This is the date that you first have to appear in court.  Note that, unless the clerk tells you otherwise, your return date is not the trial date.

Step 3:  Appear at Return Date

Next you will appear at the return date.  If the other side does not show up at the return date, you filed the servicemember affidavit when you filed your warrant in debt, and the other side was properly served with the warrant in debt, you can get a default judgment.  You can present what is called ex parte proof, where you explain to the judge why you are entitled to what you are entitled to, and if the judge agrees, you will get judgment right then and there.

If the other side does show up, they can either confess judgment (in which case you win), or they can deny that they owe what you say they do, and a trial date will then be set.

Also, either party has the right to request "pleadings."  These would be a Bill of Particulars, for the plaintiff to lay out the details of their case, and an Answer and Grounds of Defense, for the defendant to lay out their defense.

Step 4:  Complete Pleadings

If pleadings are ordered, it is critical that you do them, and get them filed and served on time.  Failure to do this will result in you losing your case.

Step 5:  Preparing for Trial

There will usually be a good bit of time between your return date and your trial.  Use that time to prepare your pleadings, interview and prepare witnesses, and, if necessary, subpoena documents from the other side to be prepared for what they might present.

Step 6:  Trial

A trial in GDC is much like a trial in any other case.  The rules of evidence, basic rules of procedure, etc. are all the same.  The plaintiff goes first, then the defendant, then the plaintiff gets a chance at a rebuttal.  At the end, the judge will rule, and will enter the judgment right then and there (since there's a blank form for them to do that, usually already in the file).

Step 7:  Post-Trial

Remember, you have the right to appeal any GDC ruling to the Circuit Court for a whole new trial, as long as there is at least a $50 difference between your desired result and the result you actually obtained.  To take advantage of this right, you must file your Notice of Appeal in GDC within 10 days from the date of judgment, and you must pay your appeal bond within 30 days of the date of judgment.

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:

• Evictions:  Evictions (also known as "unlawful detainers") have some important differences.  First, many courts only hear evictions on a certain day of the week (Fridays in Fairfax County).  Second, while the return day for a warrant in debt is usually required to be around 30 days after the date of filing, the return day for an unlawful detainer is usually required to be 15-21 days after the date of filing.  Third, there are usually months between the return day and trial for a warrant in debt, but for an unlawful detainer, it's usually 2-3 weeks.  Finally, if you are the defendant in an unlawful detainer, an appeal requires you to pay your appeal bond at the same time as you file your notice of appeal (so, within 10 days).
• Small Claims Division:  Cases in the small claims division of GDC have some pretty major differences.  First, there are no attorneys in small claims.  If either side gets an attorney, the case is kicked out to the main GDC.  Second, there is no return day - the first day you come to court is the trial date.  Third, there is no option for "pleadings" in small claims.  Finally, the rules of procedure at trial for small claims court are usually much more informal.
• Protective Orders:  Since 2012, the GDC has had jurisdiction over protective order cases between people not considered "family members" under the Virginia Code's expanded definition of the term.  The procedures for a protective order in GDC are much the same as in J&DR - ex parte appearance in front of a judge to get a preliminary protective order, then a relatively short hearing within 15 days on the issue of a final protective order.  For more on protective orders, you can view my post on the topic.

Conclusion

Practice in the General District Court can be full of pitfalls, and if you have a savvy opponent, you can fall prey to tricks pretty easily.  It is always best, in my opinion, to proceed with an attorney.  If you have a case coming up or that you would like to file in GDC, 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 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!