General District Court: An Overview for the Personal Injury Trial Lawyer

Trying personal injury cases in the general district court has become more attractive and fun over the past five years thanks to two significant changes fought for by the Virginia Trial Lawyers Association.

The first significant change was the repeal of the removal statute. In “the old days”, defense lawyers routinely relied on Virginia Code §16.1-92 to remove cases to circuit court where the amount sued for was greater than $4,500.00. That statute was repealed in 2007 and removal was abolished. ¹ The second significant change came in 2011 when the jurisdictional limit of the general district court was increased from $15,000.00 to $25,000.00. ²

Both changes eliminated a lot of plaintiff’s attorneys’ anxiety with respect to where to file suit on the smaller valued personal injury case… especially those cases involving soft tissue injuries and minimal property damage. Under the old jurisdictional limit, one may have had cases that were worth slightly more than $15,000.00, but it did not make sense to file suit in circuit court given the time and expense factors associated with that venue. General district court is a helpful alternative. It allows these cases to be conducted in a forum that is less expensive… faster… and less risky than circuit court. This article is designed to give the personal injury trial lawyer a brief overview of general district court, the process and the many advantages it has to offer.

The Jurisdiction and Rules of General District Court

Virginia Code §16.1-77 sets forth the jurisdictional limits of general district court. The maximum limit for an ad damnum in a personal injury claim, exclusive of interest, is $25,000.00. ³ The court has original exclusive jurisdiction of claims up to $4,500.00. ⁴ General district courts and circuit courts share concurrent jurisdiction of claims between $4,500.00 and $25,000.00. ⁵ General district court also has concurrent jurisdiction with small claims court when the amount claimed does not exceed $5,000.00, exclusive of interest. ⁶ However, attorneys are not allowed to represent clients in small claims court. ⁷

Part 7A of the Rules of the Supreme Court of Virginia applies to all proceedings in general district court. Part 7B applies to all civil cases. ⁸ The rules are fairly short, straightforward and attorneys should familiarize themselves with these rules prior to filing suit. It is also important to keep in mind that most courts also have local rules, ⁹ so attorneys should check with the local clerk’s office where they intend to file.

The Warrant in Debt: Filing and Serving

Before filing in general district court, attorneys should make sure the client is aware of all the differences between general district court and circuit court before making the final decision of where to file. Specifically, attorneys should make sure clients are aware of not only the general district court’s jurisdictional limit of $25,000.00, but also the right of either party to appeal. Once the client has selected the general district court path … it is time to prepare a Warrant in Debt.

Most civil actions in a general district court are brought by a Warrant in Debt. ¹⁰ The Warrant in Debt is an easy form to obtain (online at www.courts.state.va.us or from a local clerk’s office) and to “fill in the blanks”. Of course, one can also file a typical motion for judgment ¹¹ if the particular facts require a more detailed method of pleading, but the Warrant in Debt is usually much more streamlined. It is also easier for the Judge as the warrant provides a section to make the award and enter judgment.

The filing fee in general district court is much less expensive than those incurred in circuit court. The fees vary from court to court but are generally comparable. Attorneys should check with each general district court clerk’s office for specific fees regarding filing and service. Also, attorneys should make sure to file as many copies of the pleading as there are defendants to be served. ¹²

Attorneys should also check with the clerk’s office to see if the court requires an affidavit regarding defendant’s military status to be filed along with the original warrant or pleading. Virginia Code §8.01-15.2 requires a plaintiff to file this affidavit prior to entry of a default judgment to insure compliance with the Federal Service Members Civil Relief Act. ¹³ The plaintiff must state whether or not the defendant is in the military, or state that the plaintiff is unable to determine the defendant’s military status. The best practice is to always file this affidavit with the initial filing.

For the technically advanced lawyer, see Virginia Code §16.1-79.1 which governs the electronic filing of civil cases in general district court.

Service of process requirements for the general district court are the same as for circuit court and are governed by Virginia Code §8.01-285, et seq.. It may be made by the local sheriff or a disinterested person over 18 years of age (i.e. a private process server). ¹⁴ The manner of serving process upon natural persons include: (1) personal service or (2) substituted service (i.e. family member/resident relative who is at least 16 years old, or valid posted service). ¹⁵ Note that if service has been made by posting, a default judgment can only be entered after a certificate is filed with the court that the warrant was mailed to the defendant no less than 10 days before entry of the judgment. ¹⁶ In the general district court, mailing a copy of the warrant to the defendant when it is initially filed will satisfy this requirement. ¹⁷ All general district court forms have a place on the back to certify mailing to the defendant which is a wise choice with every initial filing. Attorneys might also consider providing a copy of the warrant to the adjuster handling the claim.

If the defendant is a non-resident of the Commonwealth of Virginia, ¹⁸ obtain service through the Department of Motor Vehicles Commissioner ¹⁹ or via the “Long Arm Statute”. ²⁰

The Warrant in Debt must be served not less than 5 days before the return date. ²¹ The proof of service must be filed with the clerk’s office within 72 hours after service. ²²

The Return

Attorneys should always check with the individual clerk’s office or website (via www.courts.state.va.us) to determine the schedule of return dates. The first return cannot exceed 60 days from the date of service. ²³ When filling out the warrant, it is smart to always select an available return date at least a month away, if not more, to allow time for service. Again, you must have obtained service at least 5 days before the return date.

The judge may require the plaintiff to file/serve a written bill of particulars and the defendant to file/serve a written grounds of defense within the periods of time specified in the order. ²⁴ The bill of particulars will be due first and that will be followed by the grounds of defense. It is usually a good idea to request pleadings in order to determine what, if any, defenses are being asserted. The bill of particulars should typically look like a complaint filed in circuit court. Failure to comply with the requirement of filing pleadings may result in the Court granting summary judgment. It may be a good idea to refrain from making that motion until trial. If a party makes it any earlier, the court will probably allow the late filing especially if there is no prejudice.

The failure of a party to appear at a hearing is never a good thing but it is especially bad for the defendant in general district court. If the defendant fails to appear, in person or by counsel, the following occurs:

– defendant is in default, – defendant waives all objections to the admissibility of evidence,

– defendant is not entitled to notice of any further proceedings, except when service is by posting pursuant to §8.01-296(2)(b) the 10 day notice required by that section shall be complied with (again… mail a copy of the warrant to the defendant when filing to satisfy this requirement), and

– for unliquidated damages, like a personal injury claim, the Court shall hear evidence and fix the amount. ²⁵

Typically, when the defendant does not appear at the return, the court will continue the case to allow the plaintiff to bring evidence regarding proof of damages or to allow for the 10 day notice requirement if service was by posting.

If the plaintiff fails to appears at the return, then the court will dismiss the action without prejudice to the right of the plaintiff to re-file. If the plaintiff fails to appear at trial, then the court will dismiss the case with prejudice provided the defendant denies owing anything under oath. If an honest defendant admits owing a portion of the claim, the court will dismiss the case without prejudice to the right of the plaintiff to re-file. ²⁶

If neither party appears at the first return or trial, the court will dismiss the case without prejudice to the right of the plaintiff to re-file. ²⁷

Discovery

Welcome to the wild west as discovery is very limited in the general district court. There are no provisions for interrogatories, requests for production of documents, request for admissions or depositions.

A subpoena duces tecum may be issued by the clerk, or by an attorney, pursuant to the terms of Rule 4:9 of the Rules of the Supreme Court of Virginia. ²⁸ The subpoena may be issued to a party as well as to a non-party, and served accordingly at least 15 days prior to the trial. ²⁹ When an attorney does issue a subpoena duces tecum in the general district court, it is typically to an insurance adjuster to obtain a client’s statement and/or property damage photographs.

Attorneys can also request a witness subpoena which must be filed at least 10 days before trial. ³⁰ 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.

Trying the Case

Another advantage of being in general district court is that one can usually obtain a trial date within a couple of months after the return date, 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 of an appeal, but sometimes they do not. Any party, or counsel, may tape record the proceedings. ³¹ Remember, general district court is a court not of record.

If the facts of the case warrant it, especially with disputed liability, attorneys may want to exclude witnesses from the courtroom prior to the start of trial in order to avoid one witness from shaping or bolstering his/her testimony based upon testimony of another witness. The court may upon its own motion, and shall upon the motion of any party, require the exclusion of every witness. ³²

The hallmark characteristics of trying a case in general district court is brevity – “short, sweet, and to the point.” Of course, there is no jury in general district court and the judge hearing your case will typically have a full docket with other trials and matters after yours. Therefore, one should always try to reach stipulations, i.e. admitted liability, with defense counsel to expedite the trial process. It is a good idea to take the opportunity to present an opening statement in order to introduce/humanize one’s client to the judge and to highlight the main issues. However, again, the opening, as well as the presentation of the evidence, and closing should be brief. Attorney’s should be prepared as if it were a circuit court jury trial, but be prepared to be brief. A case involving admitted liability and soft tissue injuries should be tried in an hour or less.

One of the most important pieces 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 court parties do not have to take the very costly step of bringing a doctor to trial. Instead, the medical records/bills can come directly into evidence. ³³ A written medical report from the treating 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. ³⁴

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. ³⁵ The 2013 Virginia General Assembly amended §16.1-88.2 to basically rewrite for clarity the section setting forth the method for introducing medical records or reports into evidence. Senate Bill 982 provides that medical bills may be introduced into evidence in the same manner as medical records. SB-982 also provides that medical records and bills are subject to the same requirement as medical reports that the party intending to present such records and bills as evidence give notice to the opposing party at least 10 days prior to trial. This clarification amendment will take effect July 1, 2013.

It should be noted that §16.1-88.2 distinguishes between reports of a treating or examining health care provider and records/bills of a hospital/other medical facilities. Typically, it is the records of a plaintiff’s treating physician, not reports, that are introduced into evidence. It is unlikely that a defense lawyer would object to records of a treating physician being introduced without a report. However, an attorney should include in the treating physician’s affidavit elements i-iii above as well as a statement that the physician is a custodian of the records which are true and accurate. This allows the attorney to argue that the treating physician’s records are admissible under any scenario in 16.1-88.2. It would also be smart to check with defense counsel prior to trial to determine if they have any objection to your affidavits.

It is typical to use the exact same form affidavit for each provider and to attach the records and bills or exhibits. However, one may also add language to the medical affidavit of a treating physician who has referred the client for additional treatment like physical therapy or diagnostic studies for example. The reason for this is because §16.1-88.2 does not address causation. Therefore, the affidavit might include language in a doctor’s affidavit to establish causation, especially if it is not clear in the records. For example, one might include an additional paragraph in the affidavit that reads:

The treatment set out in the attached reports and exhibits were provided to ______ for the injuries she sustained in the collision, and, to a reasonable degree of medical probability, were reasonable, appropriate, medically necessary and a direct result of the collision. The referral for physical therapy was also medically necessary, reasonable, appropriate and a direct result of the collision.

On some occasions, one might consider attaching a statement of damages as an exhibit to the doctor’s affidavit and include a paragraph that states the treatment as outlined on the attached statement of damages was medical necessary, reasonable, appropriate and a direct result of the collision.

However, attorneys should be prepared for the defense to object on the basis that §16.1-88.2 does not allow this additional language and therefore the offending affidavit should be excluded. One response is that nowhere in §16.1-88.2 does it limit language to be included in the affidavit. To the contrary, the statue only provides what must be included, not what must not be included. One can also argue to the judge that you do not “throw the baby out with the bath water” and he/she could simply strike out the additional language. This additional language can be very persuasive in making your case to the general district court judge or, if the case is appealed, to a jury. Hopefully, causation is evident from the medical records. If it is not, one may want to have a doctor prepare an opinion letter and make it a part of the patients medical chart/records and thus admissible under §16.1-88.2.

In lieu of an affidavit, the medical provider can also sign an affirmation. An affirmation is a formal declaration that a statement is true. §8.01-4.3 provides that if a matter in a judicial proceeding is permitted to be established by a sworn statement or affidavit, then such matter may, with the same force and effect, be established by an unsworn statement which contains the following language “I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct”. ³⁶ The doctor’s affirmation will look just like the typical doctor’s affidavit with the exception of the above language instead of having it notarized. One advantage to using an affirmation is that it eliminates the need for the busy doctor to find a notary.

Affidavits, with the medical records/billing, must be provided to defense counsel at least 10 days prior to trial along with written notice of your intention to use them at trial. ³⁷ As a practical matter, it is a good idea to file the affidavits with the court and provide copies to defense counsel well in advance of that 10 day deadline. Allow plenty of time to get the signed affidavit back from the doctor and give him/her a specific deadline on when the executed document is needed back. Send a letter to the doctor with the affidavit and explain that by signing the affidavit they can avoid the necessity of having to testify at trial. At trial, attorneys may move into evidence those affidavits that were previously filed with the court. It may also be a good idea to bring an extra copy of the signed affidavits to trial.

In addition to getting the medical records/billing into evidence via the affidavit, you can also introduce the medical billing, along with a statement of damages summarizing expenses, using the principles set forth in McMunn v. Tatum, 237 Va. 558 (1989). “A plaintiff may offer medical bills through the plaintiff’s testimony alone if he lays a foundation showing (1) that the bills are regular on their face, and (2) that they appear to relate to the treatment, the nature and details of which the plaintiff has explained.” ³⁸

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 motor vehicle may be presented by an itemized estimate or appraisal via an 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. ³⁹

It would be a rare general district court case where defense counsel presents any medical evidence of their own. They 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 sometimes attempt to introduce prior records obtained via a subpoena duces tecum through their own affidavits . . but it is rare.

The reasonableness of the expenses are rebuttably 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. ⁴⁰

A party can take a non-suit in the general district court. 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. ⁴¹ The case can be re-filed in circuit court for more than $25,000.00. ⁴²

Post Trial

Cases in the general district court may be appealed to the circuit court. The appeal must be noticed within 10 days. ⁴³ Either party has the right to appeal, provided the amount in controversy exceeds $50.00, and have a trial in circuit court de novo. ⁴⁴ Either party can request a jury once it is in circuit court. ⁴⁵

If the defendant appeals – then he/she must give bond in an amount and with sufficient surety approved by the judge, or in an amount sufficient to satisfy the judgment. ⁴⁶ The appeal bond must be posted within 30 days from the date of judgment. ⁴⁷ The court may also allow the plaintiff to increase the amount of the claim above the $25,000.00 jurisdictional limit when the defendant appeals. ⁴⁸

If the plaintiff appeals – no appeal bond will be required where the defendant has not asserted a counterclaim. ⁴⁹ Under current law, the plaintiff will not be allowed to use the medical affidavits per §16.1-88.2 if he or she appeals. However, that will change on July 1, 2013. The 2013 Virginia General Assembly made another amendment to §16.1-88.2 which provides that the method for introducing into evidence medical records or reports also applies to appeals to the circuit court regardless of which party appeals. The amendment further provides that this method may only be used by a plaintiff in an appeal to circuit court if the plaintiff has not requested an amount on appeal in excess of the damages sought in the general district court. Also, the claim cannot be increased above the jurisdictional limit if a plaintiff appeals. ⁵⁰

A party does have the right to make a motion for a new trial. The motion must be made within 30 days after the date of judgment, not including the date of entry of such judgment, to the same judge who rendered the judgment. ⁵¹ A hearing shall be held no later than 45 days after the date of judgment. ⁵² A motion for a new trial will not toll the time for noting an appeal.

Conclusion

There has never been a better time to try a smaller valued personal injury claim in general district court. The advantages of general district court over circuit court on these types of cases are significant including:

– It’s less expensive … both in filing fees and being able to avoid costly/time consuming

discovery and expensive expert witness fees.

– It’s faster… both in securing a trial date and trying the case.

– It’s less risky… than facing a conservative/defense oriented jury with a soft injury case.

Our firm has always aggressively litigated these cases. While I do not have any official statistics to quote, I find myself filing and trying more cases in the general district court than ever before. The results being obtained are almost always better than the low-ball offers from a cynical adjuster. In my experience, on the appropriate case, the general district court will offer you a forum where you client can get a fair result with a minimum of time and expense. Try it… you’ll like it!

About the Author: David M. Williams, Jr. is a personal injury trial attorney practicing with Allen, Allen, Allen & Allen. In 2004, David was hired by Allen & Allen to work in its Fredericksburg office and he now manages the firm’s Garrisonville/Stafford County office. His legal career has focused almost exclusively on personal injury law and he has litigated a broad range of matters in both state and federal courts. David is licensed to practice law in both Virginia and South Carolina and he is rated AV Preeminent by Martindale-Hubbell. He is a member of the Virginia and South Carolina Bars, American Bar Association, American Association for Justice, Virginia Trial Lawyers Association and the Fredericksburg Area Bar Association where he serves as the current treasurer.

Endnotes

1. Code of Virginia (1950), as amended, §16.1-92 – repealed by Acts 2007, c. 869, c1.2.
2. Code of Virginia (1950), as amended, §16.1-77
3. Code of Virginia (1950), as amended, §16.1-77(1)
4. Code of Virginia (1950), as amended, §16.1-77(1)
5. Code of Virginia (1950), as amended, §16.1-77(1)
6. Code of Virginia (1950), as amended, §16.1-122.2
7. Code of Virginia (1950), as amended, §16.1-122.4
8. Rule 7A and 7B, Rules of the Virginia Supreme Court
9. Code of Virginia (1950), as amended, §8.01-4
10. Code of Virginia (1950), as amended, §16.1-79
11. Code of Virginia (1950), as amended, §16.1-81
12. Code of Virginia (1950), as amended, §16.1-82
13. Code of Virginia (1950), as amended, §8.01-15.2
14. Code of Virginia (1950), as amended, §8.01-293
15. Code of Virginia (1950), as amended, §8.01-296
16. Code of Virginia (1950), as amended, §8.01-296(2)(b) and Rule 7B:9(b), Rules of the Virginia Supreme Court.
17. Code of Virginia (1950), as amended, §8.01-296(2)(b)
18. Code of Virginia (1950), as amended, §8.01-307(2)
19. Code of Virginia (1950), as amended, §8.01-308
20. Code of Virginia (1950), as amended, §8.01-328.1 et seq.
21. Code of Virginia (1950), as amended, §16.1-80 & §16.1-82
22. Code of Virginia (1950), as amended, §8.01-294 & §8.01-325
23. Code of Virginia (1950), as amended, §16.1-79
24. Rule 7B:2, Rules of the Virginia Supreme Court
25. Rule 7B:9, Rules of the Virginia Supreme Court
26. Rule 7B:8, Rules of the Virginia Supreme Court
27. Rule 7B:8, Rules of the Virginia Supreme Court
28. Code of Virginia (1950), as amended, §16.1-89
29. Code of Virginia (1950), as amended, §16.1-89 and Virginia Supreme Court R. 7A:10; R. 7A:12 and R. 1:12
30. Code of Virginia (1950), as amended, §16.1-69.25 and Virginia Supreme Court R. 7A:12
31. Code of Virginia (1950), as amended, §16.1-69.35:2
32. Code of Virginia (1950), as amended, §8.01-375
33. Code of Virginia (1950), as amended, §16.1-88.2
34. Id
35. Id
36. Code of Virginia (1950), as amended, §8.01-4.3 and §16.1-88.2
37. Code of Virginia (1950), as amended, §16.1-88.2
38. McMann v. Tatum, 237 Va. 558, 569 (1989)
39. Code of Virginia (1950), as amended, §8.01-416
40. Code of Virginia (1950), as amended, §8.01-413.01
41. Code of Virginia (1950), as amended, §8.01-380
42. Comer v. Rose 252 Va. 57 (1996)
43. Code of Virginia (1950), as amended, §16.1-106
44. Id
45. Code of Virginia (1950), as amended, §16.1-113
46. Code of Virginia (1950), as amended, §16.1-107
47. Id
48. Code of Virginia (1950), as amended, §16.1-114.1
49. Code of Virginia (1950), as amended, §16.1-107
50. Code of Virginia (1950), as amended, §16.1-114.1
51. Code of Virginia (1950), as amended, §16.1-97.1
52. Id