Guide to Auto Accident Property Damage - Small Claims Court Part 2 - The Trial
In Part 2 of Auto Accident Property Damage and Small Claims Court we follow the case from the pre-trial period to its trial and ultimate conclusion.
Removal of Case to General District Court
Once the Sheriff or private process server serves the Warrant in Debt on the negligent defendant, they have the right to ask the small claims court to remove the case to general district court. This is most likely to happen when the negligent driver is insured and their insurance company lawyer will request to remove the case from small claims court to the general district court.† The Warrant in Debt (Form DC-402) contains a section printed on the back that can be used to request this removal. The defendant has a right to remove the case at any time up until the judge decides the case. In the event the negligent defendant or their insurance company lawyer removes your property damage case to general district court, you may want to consult an attorney to see whether you should proceed on your own or obtain counsel.
Return of the Warrant in Debt a/k/a “Return Date”
The civil warrant will include a specific date and time when the defendant and the plaintiff must come to court for the trial of their dispute. This date is sometimes called the “return date.” All of the cases scheduled for trial on the same date may require the parties to appear at the same time. However, the cases will be called one at a time when the parties will approach the judge concerning their case. What if the Defendant Doesn’t Show for the Return Date? If the civil warrant was served on the defendant in a legally correct way and they fail to appear on the return date, a “default judgment” may be entered against the defendant. In this situation, the court will enter a judgment for the plaintiff on the trial date based on sufficient evidence from the plaintiff supporting the claim. What if YOU don’t show up for the Return Date? If the plaintiff fails to appear in court, the defendant may ask the judge to decide the case in the defendant’s favor.
Pre-Trial - Subpoenaing Witnesses
If a party wishes to call witnesses besides himself, he or she should consider having them served with a subpoena, even if the witness has willingly agreed to appear at the trial or is a defendant. If the witness has received the subpoena at least five days before trial and if his or her testimony is important to the case, the judge will usually continue the case until a later date (if requested), should the witness not appear. Otherwise, the trial usually will proceed without that witness.
To subpoena a witness, the party must file a Request for Witness Subpoena, district court form DC-325, in the small claims division of the clerk’s office at least ten (10) days before the trial. This timing is required so that the witness can receive the subpoena at least five (5) days before trial as required by law. You will need to give the name and current home street address of the prospective witness to the clerk. You will be charged a sheriff’s fee for the service of each witness subpoena.
It is important to notify your witnesses (except the other party) before they receive their subpoenas. Witnesses taken by surprise may be angered and less willing to be cooperative in court. Explain to a witness why you need his or her testimony and try to convince the witness to come willingly (and tell them a subpoena is coming). Any party is entitled to subpoena any witness, willing or not, but a willing witness may be more helpful in court.
Request for Witness Subpoena link: http://www.courts.state.va.us/forms/district/dc325.pdf
Trial - Think “The People’s Court”
Each case is tried in an informal manner on the Return Date. Both plaintiff and defendant will be given an opportunity to introduce evidence, ask questions of the witnesses, and explain to the judge why the judge should enter judgment in his favor. While the judge has the discretion to admit evidence of probative value even if it does not comply with all of the legal requirements, he may not allow witnesses to testify until they have been sworn and he may not consider “privileged communications” (statements by certain people barred by law from being used in a trial). Property Damage cases can be taken care of sometimes in as little as fifteen (15) minutes depending on the number of witnesses and evidence you are presenting to the court. Brevity is usually the key to successful communication at a small claims court trial.
Judgment - you win!!
At the end of the case, the judge will enter judgment for either the plaintiff or the defendant. If judgment is for the plaintiff, it may be the result sought by the plaintiff, or it may be less. The person who has the burden of proof must not only prove that he or she is entitled to win the case, but also must prove the amount due. The udge will
What If I Don’t Like the Judge’s Decision? – Appeal It! NOTE: You’d Better Do It Fast!
If a party wishes to appeal the judgment, the party may file an appeal of the case to the circuit court for a new trial. Notice of the appeal must be filed within ten (10) days after the entry of judgment. District Court Form DC-475, Civil Appeal Notice, is used for filing an appeal. If an appeal is filed, the judge will set an appeal bond. Within thirty (30) days after judgment is entered, an appealing party must perfect the appeal by posting the required bond with the clerk of the court. The appeal will be tried in circuit court in a formal manner strictly following all of the rules of evidence and procedure, where lawyers usually represent the parties.
Enforcing Your Hard Earned Judgment - After the Appeal Period Passes
The judgment of the court is, in itself, nothing but an official statement in the court’s records that the defendant, now also called the judgment debtor, owes the plaintiff, the judgment creditor, a certain amount of money with interest. The judgment must be enforced out of the assets of the defendant.
To enforce the collection of the judgment, the judgment creditor may contact the general district court clerk’s office for additional information on court procedures to collect the judgment, including:
• Using a Summons to Answer Interrogatories for getting information about the defendant and his assets in order to use court collection procedures.
• Obtaining an Abstract of Judgment to take to circuit court for recording as a lien against real estate.
• Obtaining a Writ of Fieri Facias to have the judgment debtor’s personal property sold at public auction to pay the judgment.
• Obtaining a Garnishment Summons to secure payment from the judgment debtor’s bank account or earnings.
†see §16.1-122.4 of the Code of Virginia of 1950, as amended.
About Rhett B. Franklin, Esq.
Rhett is celebrating his 25th year in the practice of law. He has worked as a personal injury, auto accident and workers’ compensation trial attorney, an adjunct professor and law lecturer. He enjoys working on interesting theories of liability and is dedicated to working to achieve the best results for his clients against insurance companies.
For More Information on Small Claims Court
You may want to visit the Virginia Court website for more information about Small Claims Court: https://www.courts.state.va.us
You can also find much of the above-listed material in a .pdf file on the Supreme Court website at: http://www.courts.state.va.us/resources/small_claims_court_procedures.pdf
The Procedures for Small Claims Court in Virginia are found in the Code of Virginia at §16.1-122.1 - §16.1-122.7. Here’s a link to that article in the Code of Virginia: https://law.lis.virginia.gov/vacodefull/title16.1/chapter6/article5/