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Chamber seeks lawsuit change

December 16, 2012 12:10 am

BY CHELYEN DAVIS

Virginia is the only state that doesn't allow judges to issue summary judgments in lawsuits based solely on written depositions.

Business groups want to change that.

The state Chamber of Commerce and the Fredericksburg Regional Chamber of Commerce are backing legislation in the upcoming General Assembly session that would allow state judges to issue summary judgments based on depositions.

A summary judgment comes when a judge rules on a case without a full trial. It can save defendants the time and expense of going forward with a trial if the complaint doesn't have legal merit. Sen. Richard Stuart, R-Stafford, used the example of personal injury cases, in which a defendant might try to persuade a judge that the plaintiff's injuries weren't the defendant's fault.

The state Chamber's legislative package for the upcoming session says that Virginia's rules don't allow depositions to be used in support of a summary judgment, although depositions can be used to defeat a motion for summary judgment.

"Enacted in 1973, this arbitrary and one-sided rule excludes a portion of otherwise reliable evidence from consideration in support of the motion," the Chamber said in its legislative documents. "The use of deposition testimony in summary judgment proceedings provides judges meaningful access to facts so that unfounded claims may be weeded out before trial. Defendants unable to remove a matter to federal court are left without a practical summary judgment remedy and must bear the costs of trial before a court may rule to strike the case."

When the issue came up at the Fredericksburg Chamber's annual legislative reception last week, most local legislators said they'd support the change, saying it would help businesses and would save time and money in the legal system.

"I think it will help make the system a little more efficient," House Speaker Bill Howell, R-Stafford, said later in an interview. "If 49 other states are doing it differently then we probably need to take a look at it."

Stuart, however, is not so sure.

He conceded that it would be a way to limit "nuisance suits," and said that if a case can't survive a summary judgment motion, "you're in trouble anyway."

But he thinks allowing use of depositions to support a summary judgment runs the risk of unfairly tilting the system against defendants. He also thinks it will result in lawyers "litigating trials in a deposition, with no judge present."

"This is designed to really put a damper on personal injury suits, make it much harder for someone to sue for personal injury claim," Stuart added. "The insurance companies would love to have that because it would limit the awards they have to pay out."

Stuart said use of depositions for testimony eliminates the ability of a judge or jury to read a witness' body language.

"Judges and juries test the credibility of a witness when they see the person testify in a courtroom you lose all that in a deposition," Stuart said. "The judge can't see the person testify and read the body language and get what he gets out of that as well."

Stuart said he hasn't read legislation proposed to allow the use of depositions to support summary judgment --one bill has been filed already--and isn't set against the bill. He simply has concerns about its ramifications, he said.

"It's got to be done in such a way that it's fair, and you're not barring people from getting the redress from their claim," Stuart said. "You don't want to foreclose the judicial process to people, and this may do that depending on how it's trained."

Chelyen Davis: 540/368-5028
Email: cdavis@freelancestar.com





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