Open Forum: Court procedure reform

“Virginia: Open For Business.” That message greets drivers entering Virginia on Interstate 81. By and large, it is true — Virginia is proudly pro-business — yet Virginia suffers a glaring, one-of-a-kind flaw which imposes a significant burden on Virginia businesses and on Virginia citizens. That flaw is Virginia’s limitation on the use of a court procedure known as “summary judgment.”

To explain, when a plaintiff sues a defendant, the parties typically conduct “discovery” before appearing in court for trial. In discovery, the parties exchange information regarding the facts and conduct depositions in which they and other witnesses give recorded sworn testimony. Absent a resolution, the court schedules a trial. The plaintiff does not, however, have an absolute right to a trial. This is where summary judgment comes in.

The court may, before trial, enter summary judgment against the plaintiff if no material fact is genuinely in dispute. Unlike the other 49 states and the federal courts, Virginia prohibits its courts from considering, to determine if material facts are genuinely in dispute, significant evidence from discovery, including deposition testimony.

What does this mean? It means that meritless, even harassing lawsuits can and do go to trial in Virginia. Take a slip and fall case. Plaintiff claims the floor was slippery at a local store, but under oath in deposition admits his shoes were untied. The store cannot obtain summary judgment based on that deposition testimony, but must go to trial. Yes, the store will likely win — the evidence will come out at trial — but only after the store pays its own lawyer many dollars more.

Fortunately, Del. Christopher Head, R-Roanoke, has introduced HB 1138, to conform Virginia’s rules to the rest of the country’s. HB 1138 has broad support. The Virginia Chamber of Commerce, the Virginia Health Care Association, and the Retail Merchants Association support it. Some of Virginia’s largest employers — Dominion, Norfolk Southern, Capital One, CSX — have spoken in favor of it. Our Frederick County Board of Supervisors supports it. Gov. McDonnell and Attorney General Cuccinelli sponsored similar legislation when they served in the General Assembly.

Who is against HB 1138? Trial lawyers — people who make money filing lawsuits — lawsuits against businesses, lawsuits against schools, lawsuits against churches, lawsuits against counties, cities, and towns, and even lawsuits against people like you and me.

Trial lawyers are crafty, of course, and argue HB 1138 would impair trial by jury. Yet the other 49 states and the federal courts don’t think so. In fact, the right to trial by jury in civil cases (HB 1138 does not affect criminal cases) only applies when the evidence supports a reasonable jury finding for the plaintiff.

Del. Head’s HB 1138 would save Virginia businesses, schools, churches, governments, and Virginia’s people millions of dollars every year. If HB 1138 can become reality, those millions could help create jobs, build schools and churches, and strengthen communities.

When we say Virginia is “Open For Business,” trial lawyers should not be able to close Virginia’s doors to business.

Rod Williams is the County Attorney for Frederick County.