Nonsuits May Not Be Taken as to Claims Already Submitted for Decision
The Virginia Business Litigation Blog
by Lee E. Berlik
2w ago
As discussed previously on this blog, plaintiffs who wish to nonsuit their claims can do so at virtually any time, subject to very limited exceptions. One such exception is that a nonsuit may not be taken as to any claim that has been submitted to the judge for a decision. Some lawyers seem to be ..read more
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The Mootness Doctrine Requires a Live Controversy
The Virginia Business Litigation Blog
by Lee E. Berlik
1M ago
Virginia courts exist to resolve disputes between litigants. They’re there to apply the law to a set of facts established by the evidence and declare and enforce the parties’ respective legal rights. Courts aren’t required to offer advisory opinions on abstract legal questions when there isn’t an actual controversy between the parties. Under the mootness ..read more
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Substantially Similar Claims Can (and Should) Be Tried Together
The Virginia Business Litigation Blog
by Lee E. Berlik
2M ago
In theory, Virginia follows a “one plaintiff per suit” rule: even if two plaintiffs are similarly situated, they should file their lawsuits separately and not jointly. There’s an exception for when there are at least six plaintiffs. The Multiple Claimant Litigation Act allows six or more plaintiffs to join together for purposes of filing a ..read more
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Discovery Continues Even After Filing of Potentially Dispositive Motions
The Virginia Business Litigation Blog
by Lee E. Berlik
4M ago
Suspending discovery while dispositive motions are pending may seem logical to most defendants. Why waste time and money responding to discovery requests in a case that might soon be dismissed? If a dispositive motion–such as a demurrer or plea in bar–is sustained, the ruling could resolve the case entirely or at least narrow the issues, rendering some of the discovery requests irrelevant. In Virginia state court, we have a rule that discourages such thinking. It says, “Discovery continues after a demurrer, plea or dispositive motion addressing one or more claims or counter-claims has been fil ..read more
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The Parol Evidence Rule in Virginia
The Virginia Business Litigation Blog
by Lee E. Berlik
6M ago
Virginia’s parol evidence rule prohibits the use of prior or contemporaneous oral statements or agreements to contradict, modify, or supplement the terms of a written contract that is intended to be a complete and final representation of the parties’ agreement. The rule is designed to protect the integrity of written contracts. It’s based on the premise that when parties have entered into a written agreement, the document itself is the best evidence of the terms of the agreement and the mutual intent of the parties. The parol evidence rule ensures the stability, predictability, and enforceabil ..read more
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Suing the Wrong Entity
The Virginia Business Litigation Blog
by Lee E. Berlik
7M ago
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
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Business Tort Claims Dismissed as Untimely in Dispute Between Wildlife Removal Companies
The Virginia Business Litigation Blog
by Lee E. Berlik
9M ago
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
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Declaratory Judgments Intended to Guide Future Conduct, Not Remedy Past Disputes
The Virginia Business Litigation Blog
by Lee E. Berlik
10M ago
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
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Distinguishing Pleas in Bar from Pleas of the General Issue
The Virginia Business Litigation Blog
by Lee E. Berlik
1y ago
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
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The Pros and Cons of Jury Trials
The Virginia Business Litigation Blog
by Lee E. Berlik
1y ago
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
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