to find out everything about an injured plaintiff through written questions that are to be answered under oath (”Interrogatories”); requests for production of documents (also under oath); oral interrogation under oath (“deposition”); and, Requests for Admission (also under oath).
Furthermore, insurance defense lawyers will routinely subpoena all the medical, work history, and personnel file records of an injured motorist so that they can look for any reason to deny responsibility for the harms and losses caused by their insured driver. It hardly seems fair to the victim. Thankfully, discovery is very limited in the General District Court. There are no provisions for Interrogatories, Requests for Production of Documents, Request for Admissions or even Depositions!!!
A Subpoena duces tecum may be issued by the clerk of the General District Court if something is needed, or by an attorney, pursuant to the terms of Rule 4:9 of the Rules of the Supreme Court of Virginia. Plaintiff’s counsel typically issue a subpoena duces tecum in the General District Court to an insurance adjuster to obtain a client’s statement and/or property damage photographs.
Attorneys for the Plaintiff can also request a witness subpoena, which must be filed at least 10 days before trial. As a practical matter, witness subpoenas should be requested well in advance of the 10 day requirement to allow sufficient time to obtain and verify proper service (i.e., that the person you want to come to court got the “invitation” in time to take off from work, make travel arrangements, etc.).
Trying the case itself is also much easier in the General District Court, as there is no jury to pick, sequester or instruct. The judge is the fact-finder and most trials can be finished on the day they start, unlike many Circuit Court cases Doug Landau has tried over his career. Another practical advantage of being in General District Court is that the injured victim’s counsel can usually obtain a trial date within a couple of months of starting the lawsuit, as opposed to a year or more in Circuit Court. The defense counsel will usually obtain a court reporter to transcribe the trial, in the event that they want to appeal, but sometimes they do not. General District Court is a court not of record, that is why the Herndon law firm ABRAMS LANDAU, Ltd. pays to send a Court Reporter to the General District Court Traffic Court proceedings and animal attack proceedings after a dog bite.
General District Court trials are short and to the point. Of course, there is no jury in General District Court; the judge decides the facts and the law, and there are not as many objections like you see on television trials. A case involving admitted liability (“fault”) and soft tissue injuries can be tried in a few hours. One of the most important (and expensive) areas of evidence to be presented at trial is the medical Affidavits that either party are allowed to introduce pursuant to Virginia Code §16.1-88.2. In the General District Courts parties do not have to take the very expensive (often thousands of dollars in Northern Virginia and the DC suburbs) step of bringing a doctor to trial. Instead, the medical records/bills can come directly into evidence. A written medical report from the treating doctor or examining health care provider shall be admitted if it is accompanied by an Affidavit/sworn statement that includes the following elements:
- (i) the person named therein was treated or examined by such health care provider
- (ii) the information contained in the report is true and accurate and fully descriptive as to the nature and extent of the injury; and
- (iii) that any statement of costs contained in the report is true and accurate.
Copies of hospital records or other medical facility records or bills shall be admitted if it is accompanied by a sworn statement of the custodian that the copies are true and accurate. Basically, if the Affidavits state that the treatment to the injured Plaintiff was “reasonable, causally related, by referral and necessary,” they would satisfy the statute when the doctor indicates that this is so to a “reasonable degree of medical probability.”
If a party is claiming property damage, or if no photos exist to show the extent of an impact, Virginia Code §8.01-416 allows that damages to a car, truck, motorcycle, etc., may be presented by an itemized estimate or appraisal via Affidavit. The affidavit and estimate / appraisal must be delivered to defense counsel at least 7 days prior to the trial if the amount of the appraisal is more than $2,500.00.
It would be a rare General District Court case where defense counsel presents any medical evidence of their own. In Circuit Court cases involving permanent injury, most insurance defense lawyers will send the injured Plaintiff to a doctor of their choosing, not for treatment, but to have a hired litigation witness testify for the Defendant. In General District Court, defense lawyers can certainly argue about causation or the reasonableness of the expenses but rarely do they present any evidence. The only evidence that is typically presented in an admitted liability case will come from the Affidavits and the plaintiff’s testimony. However, §16.1-88.2 does permit either party to use affidavits to introduce medical records of treating health care providers. The defense will occasionally attempt to introduce prior records obtained via a subpoena through their own Affidavits.
In General District Court, the reasonableness of the expenses are presumed, provided defense counsel has been given the records/billing at least twenty-one days prior to trial, upon identification by the plaintiff of the original bill, or a duly authenticated copy and the plaintiff’s testimony:
- (i) identifying the health care provided,
- (ii) explaining the circumstances surrounding his/her receipt of the bill,
- (iii) describing the services rendered, and
- (iv) stating that the services were rendered in connection with treatment for the injuries received in the accident.
- [Note that this legal presumption is rebuttable.]
As is the case in Circuit Court, in the General District Court, a Plaintiff can take a non-suit (an automatic “do over”). The rules are the same as with Circuit Court: a non-suit can be taken before a motion to strike the evidence has been sustained, before the judge retires or before the action has been submitted to the court for decision. The case can be re-filed in circuit court for more than $25,000.00. General District Court cases can be appealed to the Circuit Court. The appeal must be noticed within 10 days. Either party has the right to appeal, provided the amount in controversy exceeds $50.00, and have a trial in Circuit Court de novo (start as though there had been no prior trial). Either party can request a jury once it is in circuit court. The Circuit Court may also allow the plaintiff to increase the amount of the claim above the $25,000.00 jurisdictional limit when the defendant appeals!
Some lawyers with whom the ABRAMS LANDAU trial team works believe that there has never been a better time to try a smaller personal injury claim in General District Court. While Doug Landau does not try cases in the General District Courts, lawyers with whom we work have gotten terrific results for our clients with more modest claims. The advantages of General District Court over Circuit Court on these types of cases include:
- Less expensive
- Less time consuming
- Almost no Discovery
- No expensive expert witness fees
- Faster securing a trial date and trying the case
Anecdotal evidence suggests that the results being obtained in the General District Courts are better than the low-ball offers from insurance adjusters in connective tissue injury cases. Consider trying your case in the General District Court, it will take less time, money, and stress and you may wind up with a better net recovery.
If you or someone you know or care for has been injured as the result of a car, truck, bicycle or motorcycle crash and there are questions about what laws apply, e-mail or call us at ABRAMS LANDAU, Ltd. (703-796-9555) at once.