If you’re going to file a lawsuit, it’s always a good idea to first do the necessary research to determine the correct identity of the person or corporate entity you’re suing. Failure to do so could result in permanent dismissal. The likelihood of this happening depends largely on the nature of the mistaken identity. The term “misnomer” refers to the situation where a plaintiff has used the wrong name to refer to an otherwise correctly identified party. In these situations, courts typically allow the plaintiff to amend the pleadings to correct the mistake. The term “misjoinder,” on the other h ..read more

In this patent and trade-secret dispute between Safe Haven Wildlife Removal and Property Management Experts and Meridian Wildlife Services, the defendant tried to raise the stakes by inserting a number of business torts (including breach of fiduciary duty, tortious interference with contract and business expectancies, and business conspiracy) but the court dismissed these claims as time-barred and ordered that the case proceed only on the patent and trade-secret claims. Those of you preparing for the Great Backyard Bird Count (which starts tomorrow!) and who spend much of your leisure time doi ..read more

Declaratory judgments are court decisions that clarify the legal relationship between parties and their rights in a situation. Unlike traditional judgments, which might involve the awarding of damages or the enforcement of rights, declaratory judgments simply declare the rights, duties, or obligations of each party. (See Virginia Code § 8.01-184, giving the courts the power to make “binding adjudications of right” in “cases of actual controversy”). This type of judgment is often sought when a party seeks an official determination of the legal status or interpretation of a law or contractual ob ..read more

In Virginia, a defendant can file a “plea in bar” if a single issue or state of facts creates a bar to the plaintiff’s recovery. A defendant who raises a plea in bar has the burden of proof to prove that particular issue or state of facts. An evidentiary hearing–with or without a jury–may be permitted to allow the defendant to present that evidence. (See Hawthorne v. VanMarter, 279 Va. 566, 577–78 (2010)). Virginia practice previously allowed defendants to file a “plea of the general issue,” which was a general denial of the plaintiff’s whole declaration or an attack upon some fact the plainti ..read more

The right to have disputed facts determined by a jury, rather than a judge, is protected by both the United States Constitution as well as the Virginia Constitution. Litigants retain the option, however, of submitting their dispute to a judge, in what we call a “bench trial.” The court will schedule a jury trial if either party requests one. But should you? There’s no one-size-fits-all answer to this question. Some cases are better suited to juries and others better suited to experienced judges. Below are some of the relevant considerations as you decide whether to seek a jury in your case. 1 ..read more

So you got sued for breach of contract. There’s no need to panic. Your legal rights may include a number of valid defenses to the claim, some of which may not be readily obvious. Knowing when to assert these defenses can make the difference between losing a large monetary judgment and getting the case dismissed at the outset. Before you write the plaintiff a check in whatever amount is being demanded in the lawsuit, consider whether one or more of these contract defenses may apply to your situation. There may be perfectly valid reasons why you don’t actually owe that money. Void or Voidable Co ..read more

Due to rules governing subject-matter jurisdiction, plaintiffs often don’t have a choice between filing their lawsuit in Virginia state court or federal court. Federal courts possess exclusive jurisdiction over certain types of claims and often lack jurisdiction to hear cases involving claims arising under state law. In many situations, though, plaintiffs have the option to pursue their claims in either state court or federal court. Neither forum is necessarily more advantageous than the other. To help prospective litigants weigh the pros and cons of state court vs. federal court, I’ve summari ..read more

Noncompete agreements generally prohibit former employees from joining a competing organization for some specified length of time after the employment relationship ends. Some agreements restrict competitive activity even before the relationship ends. In the absence of such an agreement, many employees might assume that they are free to start competing with their employers at any time they wish. This isn’t necessarily true. Under Virginia law, employees owe a fiduciary duty of loyalty to their employer which prohibits competitive acts during employment. This duty exists irrespective of any cont ..read more

I wish I could help everyone who comes to me with a problem, but I can’t. People get scammed all the time, then want to hire a lawyer to sue the scammer for damages. Is that ever possible? Sure, but most scams these days occur online and are specifically designed to leave the victim without a remedy. Typically, the scammer communicates through technology that conceals his identity, making it impossible to locate his whereabouts to serve him with suit papers. If you are able to trace the scammer, he’s often found in a foreign country outside the jurisdiction of U.S. courts. Money sent to scamme ..read more

No employer likes to see a large number of its employees band together and leave en masse to form a competing business. A large number of employees leaving at once can lead to a loss of institutional knowledge and experience, not to mention customers and revenues. Mass departures hurt morale and can lead to increased costs for recruitment and training. A company’s reputation can be irreparably damaged once word gets out that a mass resignation has taken place, making it more difficult for the business to attract new talent. Depending on the circumstances, litigation against the former employee ..read more