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Winchester, Virginia 22601

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Circuit Court
Trial Procedures for Persons
Without a Lawyer

from
Judge John E. Wetsel, Jr


Please read this carefully, because it is intended to help you in the trial of your case. The Court cannot advise you in the prosecution of your case, so you must inform yourself.


The circuit court is a court of record, and, in most instances, parties in the circuit court are represented by attorneys. The various rules which apply have been designed to ensure the fair and orderly administration of justice and are not intended to confuse you or to arbitrarily dispose of cases. If you do not understand a ruling of the Court, the Court will explain it to you. However, the Court cannot advise you as to the manner in which you should present your case.




      Jurisdiction

      Procedures

      Sources of the Law

      Glossary of Common Legal Terms



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Jurisdiction

The Circuit Court is the trial court of general jurisdiction in Virginia which means that this Court has the authority to try a full range of cases both civil and criminal. This Court also hears appeals from the general district court, the juvenile and domestic relations district court, and it may well be that your case originated in one of these two lower courts.


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Procedure

After your case has been filed, you will appear at a Motions Day for a pretrial conference at which your case will be set for trial either with or without a jury. To place your case on the court's motions day docket a Praecipe will need to be filed with the clerk's office and notice sent to all involved parties. Please review the courts Calendar for Winchester Circuit Court or Calendar for Frederick County Circuit Court for available motions days. If yours is a domestic case, it will be tried without a jury. When you appear at the pre-trial conference you should be prepared to explain very briefly the nature of your case. For example: the plaintiff may say this is a suit for breach of a contract to repair my car for which I have sued the defendant for the sum of $1,500.

At the pre-trial conference, a pre-trial order will be entered setting your case for trial, setting a cut-off date for discovery, and framing the issues for trial. In all cases, the parties are required to identify their witnesses in advance of trial, prefile their exhibits which they intend to introduce into evidence, and in the event of a jury trial, their jury instructions. If you have not already done so, after the pretrial conference, the plaintiff will be required to file a bill of particulars which is a written pleading setting forth in numbered paragraphs the factual basis of his claim, to which the defendant will be required to file a written response.

In cases which are tried by the Court , you may be required to file a proposed Findings of Fact and Conclusions of Law, which are very similar to a Bill of Particulars. To determine the law which governs your case, you should refer to the sources of the law as described later sections of this memorandum. In the Circuit Court, the original of all pleadings, except discovery pleadings, must be filed with the Clerk of the Circuit Court and a copy sent to the opposing party.

The admission of evidence in Court is governed by laws of evidence and rules of procedure which have evolved in some instances over hundreds of years. These rules work very well and apply uniformly to a wide range of cases. However, a a lay person, you may find them to be technical, and if you have any questions about whether any item of evidence in your case is admissible, you should consult Friend, The Law of Evidence in Virginia
  1. Trial procedures are founded on principles of common courtesy.
    Do not speak when other persons are speaking.
    Do not raise your voice.

  2. Most legal actions have three parts:
    • breach of a duty owed to the other party, such as to comply with the contract or not be negligent;
    • which proximately causes;
    • damage to another person, who is usually the person filing the action.

  3. If you are the plaintiff (person suing) you must prove all three parts of your case by the greater weight of the evidence or you will lose. Damages are never presumed, you must produce suffcient evidence on the issue of damages so that the court may make a reasonable estimate of your damages. If your property is damaged, you should have the bills which you incurred to repair the property. You may also have to call the persons who did the work. In Landlord tenant cases, the damages must be itemized, so that each item of claimed damage can be individually considered. If there was a security deposit from which the landlord seeks to deduct rent or damages, the landlord should give the tenant written notice itemizing the deductions from the security deposit. See Virginia Code 55.248.11

  4. The trial procedure is as follows:
    • Each side may make a brief opening statement outlining their case.
    • The plaintiff introduces evidence, then the defendant introduces evidence.
      When you take the stand introduce yourself, and then relate the facts upon which you base your claim or defense.
    • If you call witnesses, generally you ask who, what, and when type questions.
    • When you cross examine the other party or their witness, you can lead them, e.g., "didn't you tell me that you damaged my property?" But do not argue with the witness in your cross examination.
    • If you have documents supporting your claim, be sure to introduce them. If the documents support your damage claim, you must prove that the defendant caused the damage.
    • At the conclusion of all the evidence, you may make a final argument summarizing your case and stating why you are entitled to recover based on the evidence.


  5. If you obtain a judgment, your judgment is not self-enforcing, which means that you will have to file separate judgment enforcement proceedings, such as garnishments and levies. The Court cannot advise you as to these procedures; however, the Clerk has the forms for these procedures, and there are additional filing costs for them.

  6. If you wish to appeal your case, you must appeal to the Supreme Court of Virginia by filing a notice of appeal in the Clerk's Office within 30 days of the date of entry of the final judgment order. Like judgments, appeals are not self-implementing, and you are referred to the Rules of the Supreme Court of Virginia, Part 5.


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Sources of the Law

The law governing civil suits in Virginia is contained in three primary sources (1) Code of Virginia, (2) reported decisions of the Virginia Supreme Court, and (3) the Virginia Court of Appeals. The judge is charged with applying the correct law to the facts of each case, and in order for you to fully understand your case and properly prepare it, it is very important that you understand the provisions of law which will apply to your particular case. While the Court cannot advise you as to the law, as that is the job of an attorney, the Court will apply the law, and you are encouraged to consult the following authorities which are available in the local law library to learn the law which applies to your case.
Code of Virginia
The Code of Virginia consist of eleven volumes with a three volume index. You should use the index to locate specific sections which may apply to your particular case. Volume 2 deals specifically with civil remedies and procedures, and Volume 11 contains the Rules of the Virginia Supreme Court.

Rules of the Virginia Supreme Court
The Rules of the Virginia Supreme Court of Virginia are set forth in Volume 11 of the Code of Virginia. They contain the general procedural rules which apply to all civil cases in the circuit court of Virginia. Part one of the Rules applies to all proceedings. Part two applies to equity cases such as those involving the interpretation of wills or domestic cases. Part three applies to actions at law, such as negligence actions and contract actions. Part four sets forth the discovery procedures which apply to all cases and those provisions by which a part is entitled to obtain information from the opposing party.

Reports of the Virginia Supreme Court and the Court of Appeals
These are the actual decisions of the Virginia Supreme Court and the Virginia Court of Appeals on cases which have been appealed from the circuit court to these respective appellate courts. These decisions may well control the result in your case.

Virginia Model Jury Instructions - Civil
At the conclusion of every case tried to a jury, the Court is required to instruct the jury as to the applicable law, and these model jury instructions contain the instructions which are given in 99% of all cases to the jury. These model jury instructions probably contain the best and most understandable statement of the law as it applies to your particular case. The model jury instructions are divided into sections, and there are sections dealing with automobile accidents, premises liability accidents, and breaches of contract.

Michies' Jurisprudence
This is an encyclopedia of the law of Virginia, and next to the model jury instructions, it may be your best source for obtaining a general understanding of the law as it applies to your particular case. The sections in Michies' will refer you to specific sections of the Code of Virginia or to specific court decisions which may have an application to your case.

American Jurisprudence 2d
This is a comprehensive enclyclopedia of American law. If you cannot find the answer to your question in the Code of Virginia, the Model Jury Instructions or Michies' Jurisprudence, American Jurisprudence is the next place that you should look.

Friend, The Law of Evidence in Virginia
This book on the law of evidence in Virginia is frequently referred to by attorneys and judges for the law on a particular point of evidence.


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Glossary of Common Legal Terms

Allegation
The assertion, declaration or statement of a party to an action made in a pleading, stating what he expects to prove.

Appeal
Process by which a case is brought from one court for review.

Bailiff
Court attendant whose duties include keeping order in the courtroom and maintaining custody of the jury.

Bill of Particulars
A written pleading in which the plaintiff sets forth the specific facts giving rise to his claim against the defendant

Charge to Jury
A judge's instructions to the jury which contain information about the laws which relate to the issue to be decided in a case.

Clerk of Court
Officer of a court whose principal duty is to maintain court records. Also referred to as Clerk.

Circuit
A geographical area containing one or more courts.

Complainant
Synonymous with "plaintiff".

Complaint or Motion for Judgment
Initial pleading by the plainitff in a civil case stating the claims against the defendant.

Court Reporter
Person who records and transcribes the testimony at court sessions.

Cross-examination
Questioning of a witness in a trial after the direct examination, or in the taking of a deposition, by the party opposed to the one who called the witness.

Defendant
The person against whom a lawsuit is filed.

Deposition
The testimony taken and recorded in an authorized place outside the courtroom.

Direct Examination
The first interrogation of a witness by the party who calls the witness to testify in his case.

Evidence
Any form of proof legally presented at a trial through witnesses, records, documents, etc.

Exhibit
Paper, document or other object received by the court as evidence during a trial or hearing.

Grounds of Defense
The defendant's written answer to the plaintiff's claim.

Instruction
Direction given by a judge to the jury regarding the law in a case.

Litigant
One who is engaged in a lawsuit.

Litigation
Contest in court.

Oath
Written or oral pledge by a person to keep a promise or speak the truth.

Objection
Statement by an attorney taking exception to testimony or the attempted admission of evidence. The most common objections are those of "hearsay" and "irrelevant."

Opening Statement
Outline of anticipated proof.

Overrule
Court's denial of any motion or point raised to the court.

Parties
Persons, corporations, or associations who have brought a lawsuit or who are defendants.

Plaintiff
Party in a civil suit who files a complaint seeking legal relief.

Praecipe
A legal notice filed in the clerk's office with a copy to the opposing party requesting the clerk to place the case on the next motions day of the court. Praecipe

Rebuttal
The introduction of refuting evidence; the attempt to show that statements of witnesses as to what occurred are not true.

Redirect Examination
Follows cross-examination and is exercised by the party who first examined the witness.

Striking a Juror
Process of selecting a trial jury where attorneys "strike" or excuse jurors from the trial until only the number needed remains.

Sustain
Court's acceptance of any motion or point raised to the court.

Verdict
Formal decision made by a jury, read before the court and accepted by the judge.

Voir Dire
The preliminary examination of a juror as to qualifications and possible biases.

Witness
Person who testifies before a court under oath regarding what he has seen, heard, or otherwise observed.




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