THE COURTS AND LEGAL PROCEDURE

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DAVID D. LENTZ

Attorney at Law

 

THE COURTS AND LEGAL PROCEDURE

Author’s Note:  The article below  is an unedited, unchanged re-print of a chapter or excerpt from the book “Law, Lawyers and Your Case:  A Dollars and Sense Examination”  (2003, Graduate Group*)  (herein “LLYC”).  While most of it remains largely valid, the book itself was designed to provide only very generalized guidance and a mere starting point for further analysis.  Being a generalized description, it was not, and is not, the “final word” on what the law is in Virginia or any other jurisdiction. (Please consult your own attorney for further guidance.)  Please also be sure to read the very important and limiting disclaimer at the end of this article.  David Dixon Lentz,  Author.  It is being republished here because much if not most of it remains valid and true today.  

Author’s Note 2 (for Virginia readers):  LLYC was written for a wide national audience.  Different states have different names for courts.  But the courts in each state have certain characteristics.  Given this LLYC labels courts according to their characteristics, instead their names which can often be confusing and misleading.  Thus, more generic terminology was/is often used.  As such LLYC labels courts as “Lower Courts”, “Courts of Record” and/or “appellate courts”.  Given this naming convention, LLYC would characterize the Virginia General District Courts and the Juvenile and Domestic Relations District Courts as being “Lower Courts”. By contrast LLYC would characterize the Circuit Courts of Virginia as being “Court of Record”.  Naturally, the Virginia Supreme Court and the Virginia Court of Appeals would be characterized as appellate courts.  The United States District Court in the federal system is a “Court of Record” and the U.S. Fourth Circuit Court of Appeals (much like the United States Supreme Court) is also an appellate Court.  This brief introductory explanation should make more sense after reading this article.

[* Unfortunately, the Graduate Group has since gone out of business and ceased publication]

Chapter 4:  The Courts.

 

The type of court that will hear your case is extremely important for a variety of reasons.  This is because the type of court that hears your case will generally determine how long it will take before it goes to trial.  It will also profoundly affect the potential costs of litigation, including attorney’s fees.  Moreover, the characteristics of the court will also have an effect on the amount of time and effort that you will have to spend on the case.  Finally, and because of the foregoing, the type of court that hears your case may have a significant effect on its outcome.  In reading this chapter, you should consider how the characteristics of each court affect the cost, the time requirements and, perhaps, even the probable outcome of your case.

 

There are two parallel court systems in the United States, the state courts and the federal courts.

 

State Courts.

 

Each state has its own judicial system.   The state courts handle, by far, most of the cases in the United States.  Any case involving state law (including state statutory law, state constitutional law, local ordinances, regulations issued by state agencies and/or the state’s “common law”) is heard in the state courts.  Divorce cases, child custody and support cases and cases involving contested wills and the administration of decedent’s estates are typically handled in the state courts.  Moreover, most personal injury, breach of contract, landlord-tenant, real estate and other more ordinary cases are also handled in the state courts.  (However, as will be seen below, if the case involves citizens of different states the case may also be heard in a federal court.)  Naturally, the state courts have jurisdiction to hear criminal and traffic cases involving alleged violations of state criminal and traffic law.

 

The Federal Courts.

 

The federal courts are independent from the state courts.  The federal courts hear cases arising under federal law.  They also hear many cases involving disputes between citizens from different states.  In other words, federal courts have “federal question” jurisdiction and “diversity” of citizenship jurisdiction.  (In this regard, diversity of citizenship means disputes between individuals, corporations and other entities from different states.)

 

Cases that involve citizens of different states must, however, have a sufficient amount in controversy before they can be brought in federal court.  Currently the case must involve a controversy involving at least $75,000 before it can be brought in federal court.  Cases involving disputes between citizens of different states that do not involve a sufficiently large claim must be brought in a state court unless a federal question is involved.  It is thus interesting to note that a federal court can exercise diversity of citizenship jurisdiction even if the underlying dispute centers upon a question involving state law and no federal statute or question is involved.  Thus, a breach of contract or a personal injury case that involves a question concerning Michigan law, for example, can still be tried in federal court if the suit involves parties from Michigan and Ohio and if the amount sued for is larger than $75,000.

 

Generally, federal question cases are those that arise under the provisions of the United States Constitution or under any of the statutes or regulations enacted by the United States Congress or a federal governmental agency.  Federal courts also hear criminal and even some traffic cases involving violations of federal law.  Many anti-discrimination laws are federal in nature.  Thus, many race, sex or religious discrimination cases are brought in federal court.  Moreover bankruptcy law is federal law and, as such, bankruptcy cases are filed in federal court.

 

The federal courts include: The United States District Courts (which are the primary trial courts in the federal system, and each state has one or several of them based on geographic district); the United States Circuit Courts of Appeals (which are regional appeals courts above the District Courts) and the United States Supreme Court (which is the highest court in the nation).  United States Magistrate Judges hear misdemeanors and lesser federal criminal cases.  Federal felonies are tried in the United States District Court.  In addition, the United States Bankruptcy Court is also a federal court and it also sits below the United States District Court.

 

Sometimes, the jurisdiction of the state courts and the federal courts overlap.  In these situations, either a state or a federal court can hear the case.  This is called “concurrent jurisdiction”.  Thus, there are situations where a case may involve a federal question or where the parties are from different states where it is nevertheless permissible for either a state court or a federal court to hear the case.  Other times, particularly in highly regulated areas of federal law, only a federal court can hear the case.  In cases where the federal and state courts have concurrent jurisdiction, however, it is often possible for the defendant to “remove” a case that was originally filed in a state court to a federal court.

 

Three Basic Courts.

 

Courts operate under a variety of names.  For example, there are traffic courts, juvenile courts, circuit courts, district courts, corporation courts, probate courts, municipal courts, courts of appeals, supreme courts and so on.  The problem is that one state may have “district” courts while another may not.  In addition, a “circuit” court in one state may not hear the same types of cases as a “circuit” court in another state.  Moreover, a “circuit” court in the federal system may not have the same function as a “circuit” court in a state’s system.

 

In any event, because of the variety of confusing names used for the various state and federal courts, it is useful to analyze all courts in terms of their procedural characteristics instead of focusing on their names.  In doing so, and for purposes of this book, the courts are broken down into three types.  In other words, a court will be considered to be a Lower Court, a Court of Record or an Appeals Court depending on the types of cases that it hears and on the types of procedures that it employs.  While it must be emphasized that not every court in every state or in the federal system will always have all of the characteristics of a Lower Court, a Court of Record or of an Appeals Court as described below, generalizing about the characteristics of these courts is very useful for analytical purposes.  Also, any particular court will have most of the characteristics of a Lower Court, a Court of Record or an Appeals Court most of the time.  Nevertheless, the client should always question his lawyer about whether the court in which his case will be heard has the relevant procedural characteristics that are discussed below.  These relevant procedural characteristics are:  The right to a jury trial; the right to use discovery (which is discussed in the next chapter); the maintenance of a “record” of the proceedings; and the availability of a right to a trial de novo in the next higher court if the losing party wants to have his case appealed or reconsidered.  Other relevant characteristics, that is, the ones that pertain to pleadings, motions and some of the other procedural requirements of these courts are discussed in more detail in the next two chapters.

 

The Lower Courts.

 

The first category of courts is the Lower Courts.  Relatively speaking, the Lower Courts usually deal with smaller cases that are of less significance.  Traffic and small civil claims courts (or simply small claims courts) are excellent examples of these courts.  The Lower Courts also typically conduct trials of less serious criminal misdemeanor cases.  Examples of misdemeanor cases tried in these courts include simple possession of marijuana cases, simple assault and battery cases and petit larceny cases.  In addition, the Lower Courts normally conduct preliminary hearings to determine whether “probable cause” exists in felony cases so that they may be certified to a Court of Record for actual trial.  (Technically, felony cases may have to be certified by the Lower Court to the grand jury of the Court of Record for another determination of probable cause before they can be submitted to the Court of Record for trial.)

 

On the civil side, Lower Courts are typically given jurisdiction to hear disputes between individuals or companies where the amount in controversy is small, typically $15,000 or less.  For example, if someone defaults on his credit card and the credit card company sues for the account balance, a Lower Court is usually the place where the case is heard.

 

Juvenile courts that have jurisdiction to hear cases involving juvenile delinquency, child abuse, neglect, child custody, visitation and support can also, many times, be classified as Lower Courts.  (To the extent however, that child custody or support becomes an issue in a divorce case, these issues are usually heard in a Court of Record, which is discussed below.)

 

All Lower Courts usually have an extremely large caseload.  In fact, they typically have the largest caseload of any type of court.  It is not unusual for a Lower Court to have 25 or more cases on its docket on any given day.  Evidence may be taken and a decision rendered in a case within five minutes.  Under these circumstances, time is very important and the parties must be prepared to go forward and to put on their evidence fairly quickly.   Unfortunately, on the date of trial, clients and lawyers often find themselves waiting considerable lengths of time before their case is actually called because of the size of the court’s docket.  This is one reason why lawyers who have one case scheduled in a given court prefer to also have other cases scheduled there for the same day – that is, to make more effective use of their time.

 

Although exceptions may exist in some states or instances, there is typically no right to a jury trial in the Lower Courts.  Moreover, even if a jury is permitted, many times they are not used in the Lower Courts because the size or the importance of the controversy does not make it economically feasible for either of the parties to request a jury.  Also, there is normally no court reporter in the Lower Courts.  Therefore, no record of the testimony or of the evidence is typically kept.  Thus, while the judgments entered in trials conducted in the Lower Courts are a matter of public record, there is no extensive record of what happened during the trial itself.  Also, there is usually little or no right to pretrial “discovery” (which is discussed in the next chapter) in the Lower Courts.  (In this regard, even if a Lower Court does permit some of the forms of discovery discussed in the next chapter, often, the economic constraints imposed by the size or importance thereof make it somewhat impractical to use many discovery techniques.)  This can make case preparation a little more difficult.  (Naturally, however, the parties are entitled to subpoena witnesses and documents to trial in the Lower Courts.)

 

The proceedings in the Lower Courts also tend to be a little less formal than in the Courts of Record.   It is not uncommon to see people represent themselves without a lawyer in the Lower Courts, although many people, in fact, choose to be represented by lawyers in these courts.  This is particularly true in criminal and more serious traffic cases where the defendant faces a possible jail sentence.

 

Usually, if a case takes on more significance, a Lower Court cannot hear it because it has no jurisdiction to render a final decision.  For this reason, most cases that are of more significance must be tried in a Court of Record (which is discussed below).  As such, the Lower Courts do not get involved in many of these more significant cases, particularly if they are civil cases.

 

The Courts of Record.

 

A step above the Lower Courts are the more formalized courts which handle larger and more serious cases.  These are the Courts of Record.

 

Courts of Record normally conduct trials involving larger civil disputes.  For example, personal injury, products liability, breach of contract and other civil cases where the amount in controversy is large (typically more than $5,000) are usually handled in the Courts of Record.  Thus, a $10 million personal injury case must be filed and originally brought in a Court of Record and cannot be brought in a Lower Court.  Divorce cases and cases involving disputes concerning land or decedent’s estates are also typically heard in Courts of Record.  In the federal system, United States District Courts are Courts of Record.

 

Courts of Record also normally hear and try criminal felony cases that have been certified to them by a grand jury and/or after a preliminary hearing has been held by the Lower Court.  This is not an appeal.  As noted, the Lower Courts do not actually try felony cases.  They merely make a determination of the existence of “probable cause” to try the defendant of the alleged crime.  Once the Lower Court makes a determination that probable cause exists, the Court of Record is then given jurisdiction to try the case (assuming, in many instances, that the grand jury has also made a determination that probable cause exists to try the defendant).  In order to obtain a conviction, however, the prosecution, at a trial in a Court of Record, must prove guilt by a higher standard than mere “probable cause”.  Instead, in order to obtain a conviction at a trial conducted in the Court of Record, the prosecution must prove that the defendant is guilty “beyond a reasonable doubt.”  (This is also the standard of proof required for a conviction in a misdemeanor case tried in a Lower Court.)

 

Many times applicable procedural rules will permit persons who have lost their cases in the Lower Courts to appeal their cases to the Courts of Record if they do so in a timely manner.  This is particularly true in smaller civil cases and in “appeals” of misdemeanor criminal and traffic cases from the Lower Courts to the Courts of Record.   Many times these appeals are not appeals in the sense that the term “appeal” is used in this book.  Instead, these appeals entitle the losing parties to new trials in which the parties try their cases all over again as if no trial had been conducted in the Lower Court.  This issue will be discussed more fully below.

 

 

Jury trials are not typical in cases tried in the Lower Courts.  By contrast, either of the parties may have a right to a jury trial in a Court of Record.  For example, criminal defendants charged with felonies are entitled to a jury trial.  (Persons charged with misdemeanors also usually have the right to a jury trial particularly if they face a possible period of imprisonment.  Clients should consult with their lawyers as to whether they can get a jury trial in a misdemeanor case in a Lower Court.)  The issue of whether either party is entitled to a jury trial in a civil case will be deferred until the next chapter.  Nevertheless, in a civil case, they are far more likely to have the right to a jury trial in a Court of Record than they are in a Lower Court.

 

A formal record or transcript of the oral testimony and the evidence is usually taken and kept by a court reporter or by some other recording device in proceedings held in a Court of Record.  Again this is unlike a Lower Court proceeding where no such record is usually kept.  Sometimes, however, even in a Court of Record, the parties have to pay to have the proceedings recorded or transcribed.  This can add to the costs that the parties will incur in a case.  In this regard, many times the court will leave it up to the parties to decide whether they want to have a court reporter present or not.  If they do not, however, no record of the proceedings may be kept.  This, in turn, may affect the feasibility of any further appeal because of the lack of any record from which to appeal.  Other courts, particularly the federal courts, either record or have a court reporter present for all proceedings.  In short, some courts record all proceedings and do not charge a fee to have the proceedings recorded, but they may charge a fee to have the record transcribed.  The practice varies from state to state and from court to court.  In any event, it can be expensive for the parties to pay for a court reporter, if they have to do so.

 

The Courts of Record typically handle fewer cases than the Lower Courts (although they still usually have heavy caseloads).  Unlike the Lower Courts, pretrial discovery (which is discussed in the next chapter) is usually permitted in the Courts of Record.  This is particularly true in civil cases.  Partially because of the right to pretrial discovery, it takes longer for cases to be scheduled for trial in the Courts of Record than it does in the Lower Courts.   In addition, trials in the Courts of Record often take longer than trials in the Lower Courts.  Trials in the Courts of Record can last for many hours or even days.  Moreover, the Courts of Record typically have more formalized rules regarding the filing of pleadings and the making of motions than the Lower Courts have.  The Courts of Record are also likely to strictly adhere to the rules of evidence, whereas the Lower Courts are less likely to do so in some instances.

 

As far as clients are concerned, the major consequence of all of the foregoing is that the legal fees and costs that the client will incur are usually greater for cases heard in the Courts of Record than they are for cases heard in the Lower Courts.   In addition, cases that will be tried in the Courts of Record will usually take longer to resolve and may require more of the client’s time than cases that will be tried in the Lower Courts.

 

The Appeals Courts.

 

A step above the Courts of Record are the Appeals Courts.  A party dissatisfied with a judgment of a Court of Record can appeal to an Appeals Court provided that he does so in a timely manner and that he has grounds for an appeal.  If, after the Court of Record renders a judgment, the time for noting an appeal expires, then the losing party has virtually no recourse and must live with the judgment of the Court of Record.   In other words, in the vast majority of instances, after the period for appeal has expired, the losing party will be forever bound by the Court of Record’s judgment regardless of whether it was correctly rendered or not.

 

In the federal system, each region of the country has its own Circuit Court of Appeals.  These are Appeals Courts.  For example, in federal cases, the Mid-Atlantic Region from Maryland to South Carolina is covered by the United States Fourth Circuit Court of Appeals.  Above the Circuit Courts of Appeals is the United States Supreme Court.  The United States Supreme Court is also an Appeals Court as that term is used in this book.   In federal cases, if one party is dissatisfied with the judgment of a United States District Court (which is a Court of Record) and believes that an error has been committed, then that party may appeal to the appropriate Circuit Court of Appeals located in the region of the country where the case was tried.  If an unfavorable ruling is rendered in the Circuit Court of Appeals then an appeal can be taken to the United States Supreme Court.

 

Similarly, each state has its own state system of Appeals Courts for cases that were originally tried in the state courts.  The first may be an intermediate appeals court and the second, the supreme (or highest) court of that state. (New York, however, uses a different system of names.)  The supreme court of any state is usually the ultimate or last place that a case can be heard on matters involving state law where no basis for federal jurisdiction exists.  Thus, in cases tried in a state court, there is no appeal to any federal court, including the United States Supreme Court if there is no federal question in the case.  Thus, because the state courts handle the vast majority of cases in the United States and because a smaller number of cases involve federal questions, the court of last resort for most litigants in most cases is the supreme court of their own state.

 

The Significance of Appeals Courts.

 

Most people probably think that they will never be involved in a case before an Appeals Court.  They are probably right, but knowing something about these courts is important.  One reason Appeals Courts are important is that these courts publish opinions in other previously decided cases that may be similar to the case that the client has.  If so, that decision may have an important, if not decisive, bearing on the outcome of the client’s case.  Why?  Because the Lower Court or the Court of Record hearing the client’s case is usually required to follow a principle of law set forth in a previously decided Appeals Court case that had a fact pattern similar to that found in the client’s case.  This is a principle known as stare decisis.  In other words, in the vast majority of cases, Lower Courts and Courts of Record must follow the legal precedent set forth in cases decided by a higher Appeals Court that sits above them in their jurisdiction.

 

Appeals Courts do not conduct trials.  They do not listen to or accept new evidence in a case.  A case that is appealed from a Court of Record to an Appeals Court is not re-tried before an Appeals Court.  Instead, the Appeals Court merely renders a decision based upon the “record” of the proceedings conducted in the Court of Record. This is why it is critically important for the parties to make sure that they have arranged to have a record of the proceedings taken in a case that will be tried before a Court of Record.   If they don’t then they may, as a practical matter, adversely affect their ability to successfully appeal their cases.

 

Generally, Appeals Courts will only reverse the decision of the trial court if there was an error made in applying the law to the facts of the case.  This means that Appeals Courts do not usually reverse findings of fact made by trial courts.  In this regard, if the trial court’s record contains evidence that rationally supports the trial court’s findings of fact then those findings will not usually be overturned on appeal.  In other words, Appeals Courts are usually deferential to the factual findings of trial court judges and juries.  This principle holds true provided that the trial court had some rational basis (based on the evidence in the record) for making the findings of fact that it made.  Thus, any perceived errors that the trial court made in making its findings of fact are generally not curable on appeal, unless the losing party has a valid objection to a ruling that the trial court made regarding the admissibility of evidence and that evidence did or would have had a material effect on the trial court’s decision.   (In addition, while Appeals Courts will occasionally reverse a trial court because there is not sufficient evidence to support the trial court’s finding, clients should usually not count on this happening.)

 

The Appeals Courts do, however, usually more favorably consider alleged errors in the application of the law to the facts.   In this regard, litigants are usually more successful in appealing errors in application of the substantive law (such as the criminal law, negligence law or contract law) to the facts of the case.  Thus, erroneous jury instructions are a fertile ground for appeal.  In addition, appeals can be granted for procedural errors such as those relating to the admissibility of any of the evidence during the trial.

 

In any event, lawyers are required by the Appeals Courts to file legal briefs arguing these points of law.  Sometimes Appeals Courts even allow lawyers to make oral arguments. These arguments and briefs, however, must be based upon the evidence introduced or proffered at trial in the Court of Record.  Moreover, the record must typically show that the losing party objected, on the record, to the trial court’s ruling regarding the point that the losing party desires to appeal.  If the losing party made no objection at trial to the trial court’s ruling, then the issue usually may not be appealed.  In other words, the losing party, in most instances, is not allowed raise a point of “error” or objection for the first time before the Appeals Court.  This is why lawyers, during the trial, are very careful to make objections and to respectfully object to the trial court’s adverse rulings regarding the admissibility of certain evidence and many other matters.

 

Whether an appeal will be heard by an Appeals Court is often left to the discretion of the Appeals Court itself.  In other words, sometimes there is no absolute right to an appeal.  Thus, the party that lost the case must often petition or request the Court to hear the appeal. (This is often called a petition for a writ of certiorari.)  Unless the Appeals Court is required by law to hear the appeal, the Appeals Court can decide, for whatever reason it deems appropriate, not to hear or consider the requested appeal.  Thus, an Appeals Court can cause a party to lose by either not agreeing to hear his appeal or by ruling against him after it agrees to hear the appeal.

 

In addition, it is important to note that many times a losing party may be required to post an appeal bond covering the amount of any judgment rendered against him.  For example, if a Court of Record renders a money judgment against a defendant requiring him to pay the plaintiff $100,000, the defendant may be required to post an appeal bond in the amount of $100,000 before he can perfect his appeal to an Appeals Court.  If this requirement is imposed in a case, the total out-of-pocket costs necessary to effectuate an appeal may be prohibitive and may deter a losing defendant from appealing a case.  This is especially true for economically disadvantaged defendants who’ve had significant monetary judgments rendered against them by the trial courts.  While some appellate rules allow Appeals Courts to waive the appeal bond requirements for indigent parties whether they do so is often within the Appeals Courts’ discretion.

 

During the appeal process, lawyers must get the record of the trial court certified.  This usually also involves having the court reporter’s records transcribed.  This can often be costly.  Once the record of the trial court is certified, lawyers for the side that lost at trial then prepare and submit written legal briefs arguing why the trial court committed legal errors.  Of course, the party that prevailed at trial must also file briefs arguing why the trial court was correct.  Naturally, preparing these briefs involves a considerable amount of legal research and drafting.  It also means that the lawyers must review all of the transcripts and records of the trial itself, including all of the transcribed testimony of the witnesses.  Moreover, and because appeals are often discretionary, lawyers must often appear at two hearings before the Appeals Court; one to request that the appeal be granted and the other to attend the actual oral argument before the Appeals Court if the appeal is granted.  Consequently, the legal fees and costs in appeals, can be as much as, if not more than, the trial itself.

 

The significance of all of the foregoing is that clients and lawyers should not ordinarily rely on the possibility of appealing the case if they get a bad result a trial.  The client and the lawyer must assume that they have only one opportunity to prevail and that they had better prevail at trial.  In other words, lawyers and clients must prepare for a case as if they will have only one opportunity to have their case heard.  Many clients fail to realize this.  This is one reason why it is absolutely critical for the client to realize that the client must make the lawyer aware of all of the evidence in a case and that the client and the lawyer must come to trial prepared to effectively put on all of their evidence.  It is extremely dangerous to assume that after a trial is over that a lawyer or client can petition the court to introduce additional evidence to clarify or explain something that has happened at trial.  In the vast majority of instances, this cannot be done.

 

Appeals from the Lower Courts to the Courts of Record.

 

There is one unique aspect of appeals worth mentioning here.  As noted above, sometimes various rules of procedure permit a party who lost a case in the Lower Court to “appeal” his case to a Court of Record.  (In other words, these appeals deal with appeals to a court other than an Appeals Court).  This typically occurs in smaller civil cases or in criminal misdemeanor cases where the losing party wants to appeal an adverse decision from the Lower Court to the Court of Record.  It may also occur in certain child custody and child support cases that were originally tried in a Lower Court.  In many instances, these “appeals” are not really appeals as that term is used in this book.   Instead, they are “trials de novo”.  During such a trial de novo, the Court of Record will hear the evidence all over again as if the trial in the Lower Court had never taken place.  This means that the witnesses will testify all over again and that the relevant documents will be introduced all over again. This, however, is not technically the same as an appeal (as that term is used in this book) with respect to appeals from the judgment of a Court of Record to an Appeals Court because the Court of Record does not review a record of the Lower Court proceedings and will not render its decision on the basis of that record alone. (In fact, there is usually no record of a Lower Court’s proceedings.)  Instead, the Court of Record can draw its own independent conclusion as to what the facts are in the case.  It therefore will render its own independent judgment on the case regardless of what the Lower Court concluded.

 

In any event, clients should question their lawyers about whether any “appeal” from the decision of a Lower Court to a Court of Record really involves merely a review of the Lower Court’s record (if there is one—and there probably isn’t) or whether the appeal really entitles them to a trial de novo.

 

Removal from a Lower Court to a Court of Record.

 

There is also another procedural oddity that is also worth mentioning.  Many states have laws giving Lower Courts and Courts of Record “concurrent jurisdiction” to hear a case.   This means that a plaintiff in a civil case can file his case in either the Lower Court or in the Court of Record.  For example, many times Lower Courts are given jurisdiction to hear personal injury and other cases where the claimed damages are less than $15,000.  The same state’s procedural rules, however, may also permit a plaintiff to file such a case in a Court of Record if the claimed damages are $5,000 or more.  In a state where these types of rules apply, a plaintiff who has a claim for $7,000 may sue in either the Lower Court or in the Court of Record.  If, however, the plaintiff elects to file suit in a Lower Court, state law may permit the defendant to have the case “removed” to the Court of Record before it is ever tried in the Lower Court.  If the defendant has a right to remove the case, the case will be tried in the Court of Record and all of the discovery procedures as well as any rights to trial by jury may become applicable.  Thus, a plaintiff may be confronted with costs and procedural complexities that he did not originally anticipate.  Defendants will usually employ this removal procedure if they feel that they need to avail themselves of the discovery procedures discussed in the next chapter in order to prepare for trial or if they want a jury.   They may also do so if they want to avoid any possibility of having to try a case twice by the trial de novo procedure noted above (that is, once by the Lower Court and then again by the Court of Record).

 

This same right of removal also exists with respect to cases where both the state and the federal courts have jurisdiction.  In other words, in cases that are brought in a state court where there is either a diversity of the citizenship of the parties (and the amount in controversy is sufficiently large) or where a federal question involved (state courts can sometimes try cases involving a federal question), a defendant is, in many instances, allowed to remove the case from a state court to a federal court.

 

Petitions for Rehearing or a New Trial.

 

Many times, a losing party in a suit can petition the court in which the trial was originally conducted to rehear or retry the case.  Usually these petitions must be filed quickly.  These motions are usually granted, however, only on limited grounds such as where the judgment was based on perjured testimony, where the trial court committed a legal error, where new evidence has been discovered that could not have been discovered before the first trial or where it can be shown that some sort of fraud has been committed on the court.  Courts, however, are usually hesitant to grant these motions absent a strong showing that it has grounds to do so.

 

Overall Policy:  To End and Give Finality to Disputes.

 

Once a case has been resolved by a court of competent jurisdiction through the rendition of a judgment or a decree, the policy of the law is that neither party should be allowed to engage in any further court proceedings regarding the facts and circumstances that were considered by the court in that case.  In other words, and by virtue of this policy, once the court has heard the case and rendered its decision, the parties are not usually allowed to come back to court and retry either the case or any of the issues that are related to the case.  As to the parties involved, the judgment or decree in question is then forever final.

 

With this policy in mind, the law generally requires that anyone disagreeing with the decision of any court to do one of two things:  (1) petition for a new trial or rehearing with the court that heard the case; or (2) appeal to the next higher court.  Moreover, and perhaps most importantly, the losing party in a case must petition for a rehearing and/or an appeal within the time permitted by law.  These time limitations to appeal and/or petition for a new trial or rehearing are typically very short.  Usually within 30 days, and often within as little as 10 days!  If a losing party does not make the appropriate petition or appeal within the applicable time frame, they are thereafter barred forever from questioning or overturning the result of the court rendering the judgment under principles known as “res judicata” and “collateral estoppel”.

 

Having said this, there are exceptional cases, in which some egregious error or wrong has been committed in a case where courts may provide relief after the time for all appeals and post-trial petitions have expired.  In criminal cases, habeas corpus relief may be available, for example, for ineffective assistance of counsel or other errors rising to a constitutional level that can be shown to have had a significant affect on the result.  Also, in civil cases, some judgments and decrees can be overturned if it can be shown that the defendant was not properly served with “process” notifying him of the original suit.  Bankruptcy relief may also be available for some defendants who are judgment debtors.  Moreover, courts will reconsider child support and child custody and visitation cases if there is a change in circumstances since the rendition of the last judgment.  Regardless of the foregoing, however, the point is that a losing party, in the vast majority of cases, must act quickly or he will be forever bound by the judgment rendered in his case.

 

 

DISCLAIMER

 

The article above is, unless otherwise noted, an unedited and unamended re-print of an excerpt from the book “Law, Lawyers and Your Case: A Dollars and Sense Examination.” (LLYC)  Published by the Graduate Group in 2003.   The publisher is now out of business and the book is now out of print.

 

The article above is to provide the reader with only a very general legal framework or reference point—a mere “starting point” to permit the reader to engage in further analysis.  It is not the “final word” so to speak and is not designed to give anyone legal advice.  As such, the foregoing article MAY NOT be relied upon by anyone to resolve his/her/its legal matter. Readers must consult their own lawyer and/or take responsibility for doing their own independent legal research/representation beyond merely reviewing this article.

 

Please keep in mind that laws do change over time and that laws differ amongst the various states, territories, nations and locations. Thus, the rules and laws stated herein may not apply to the reader.

 

Any similarities in names, descriptions or accounts of persons, entities or events in the above article/excerpt is purely accidental and all person/characters, entities and events therein mentioned are fictional and not intended to depict or describe any actual person, event or circumstance.

 

Despite the passing of many years most of this book is still relevant today.  It is still very useful in terms of explaining the how legal problems get handled, the attorney-client relationship, trial and testifying and very importantly the general manner in which the legal system, lawyers and the courts operate. Important concepts like discovery, summary judgment and a host of other terms are clearly explained and defined.  Civil, criminal, family law, personal injury and a host of other types of cases are discussed in demystifying detail.

 

As stated this book is general in nature and intended for a broad national audience.  However, for readers living in Virginia, in Virginia’s Commonwealth (that is, the state’s) court system, the “Lower Courts” as described above are the General District Courts and/or the Juvenile and Domestic Relations District Courts. The Circuit Court in Virginia is what LLYC would characterize as a Court of Record.  The Virginia Supreme Court and the Virginia Court of Appeals are appellate courts. The federal courts system is much different.  The United States District Court is the major trial court and is what LLYC would call a Court of Record, whereas the U.S. Fourth Circuit Court of Appeals (much like the United States Supreme Court) is an appellate Court.

 

Dollar amounts for virtually all costs, expenses, attorney’s fees, damages etc. are probably very different than what is described above because LLYC was published in 2003 and costs and dollar figures can vary widely depending on the location of the legal matter.   This naturally would also include changes and new jurisdictional dollar limits for most courts.

 

There have been extensive changes to the Bankruptcy Code since LLYC was first published.  As such, any references to bankruptcy rules, laws and/or legal requirements could be out of date and/or incorrect.

 

Since the LLYC was written there have been changes in the way third party costs and expenses (such as for experts and court reporters etc.) may be funded and/or paid for—often making it somewhat easier for the client and his/her lawyer to pay for and/or carry a plaintiff’s personal injury/product’s liability case.

 

If a client has been damaged or lost money because of the ethical violations of his/her lawyer (for example, if the lawyer has stolen or misappropriated funds from the client or the client’s escrow account) many state bar associations have established separate trust funds to reimburse clients for the wrongs of their lawyers.

 

With regard to “property law” matters, this book has been written largely from the perspective of someone living in a state with English “common law” roots because the legal system in most states in the United States is based on English common law.  However, folks who live in “community property” or “civil law” jurisdictions may have different rules regarding discussions pertaining to divorce property settlements, real estate law, inheritance and in the laws of wills, trusts and estates.

 

This article/blog which appears in www.reasonandbalance.com and/or www.davidlentzlaw.com

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Copyright 2021.  David Dixon Lentz.  All Rights Reserved.