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There will be a fierce debate on the centerpiece of tort reform in Virginia:  Should the judge have the power to grant summary judgment on depositions.  This would give the judge the power to grant judgment in a case if there was no facts to go further based on the sworn testimony of the witnesses and parties in the case.  That sounds good but it requires the judge to review the facts to make that determination.  The jury should make that determination.  It will increase trial costs and the length of litigation in that circuit court judges will have to review depositions to ensure the right decision; many do not have law clerks to assist them in this endeavor.

Proponents contend that all the other states do it and also the Federal system.  So, let’s get with the program!  But first let’s keep in mind the following facts about Virginia state jurisprudence:

1.  We have contributory negligence that bars recovery if the plaintiff is even a tiny bit at fault.

2.  We have assumption of the risk that bars recovery if the plaintiff assumes the risk of injury.

3.  We have solid conservative judges.

4.  We have solid conservative juries.

5.  Juries in Virginia tend to be in most cities or counties to be conservative in awarding damages (Yes there are a few exceptions but they are exceptions) in civil cases.

6.  We have a rule of evidence that the case cannot rise higher than the plaintiff’s testimony – meaning the witnesses cannot contradict the plaintiff even if the plaintiff is in error or did not see or perceive what the witnesses did.

6.  We have a cap on damages in medical malpractice “med mal” cases (just over a million dollars), many procedures to prevent frivolous med mal cases and a cap on punitive damages ($350,000).

So, we have to ask what’s the issue that gives rise to a need for summary judgment on depositions?  It’s a problem looking for a solution.

There is also the lack of what is called an “appeal of right” in our system.  Appeals in civil cases other than divorce go to the state supreme court by petition.  That petition must be granted and then the court hears the case and renders a decision.  It can take a year to have this matter resolved.  (I consider our two-tiered appellate review to be more effective than an appeal of right and I do not want it changed.)  To even consider summary judgment by deposition, we need a expedited appeal procedure that ensures that every summary judgment is reviewed quickly by the Supreme Court.  No such procedure is present in this bill.

I understand that this matter will be before the House Courts of Justice Committee next week and you should consider sending these delegates an email indicating that the present Virginia procedure should not be changed.  The Summary Judgment bill is HB 1374.



About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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