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Text of Rules of the Supreme Court
Rule 1:1 RULES OF SUPREME COURT OF VIRGINIA
Parts One, One A, Two, Three, Four and Five of these Rules were adopted November 22, 1971, and generally made effective March 1, 1972. They constituted a revision of, and replaced all prior Rules, except for the Rules of Criminal Practice and Procedure (Part Three A) and the Rules for the Integration of the Virginia State Bar (Part Six). Part Three A was adopted June 15, 1971, and made effective January 1, 1972. Part Two A was adopted May 19, 1977, effective July 1, 1977. Part Three B was adopted June 22, 1977, effective July 1, 1977. Part Three C was promulgated effective August 28, 1978. Part Three D was adopted February 17, 1982, effective July 1, 1982. Part Five A was adopted May 1, 1984, effective October 1, 1984, except for Rule 5A:11, which became effective November 1, 1984. The Medical Malpractice Rules of Practice were promulgated by the Chief Justice on November 1, 1976, and became immediately effective. Part Four was revised by amendment adopted July 22, 1977, effective October 1, 1977. Part Three A was revised by amendment adopted May 1, 1984, effective July 1, 1984. Part Five was revised by amendment adopted May 16, 1985, effective August 1, 1985. Parts Three B and Three C were revised by amendment adopted December 21, 1987, effective July 1, 1988. Part Three D is repealed effective July 1, 1989. Parts Seven A, Seven B and Seven C were adopted effective July 1, 1989. Part 8 was adopted effective July 1, 1992.
The statements of source and the comments that appear after some of the Rules were prepared by the subcommittee that presented the Rules to the Judicial Council. They are not part of the Rules as adopted by the Supreme Court, but are included for the useful information that they give the practitioner. The Rules referred to in the statements of source, and the "present" or "existing" Rules referred to in the comments, are the former Rules of the Supreme Court of Appeals, as amended.
Many of the cases cited in the annotations under the various Rules were decided under similar earlier Rules.
GENERAL RULES APPLICABLE TO ALL PROCEEDINGS
Rule 1:1.2 Finality of Judgments, Orders and Decrees.
All final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer. But notwithstanding the finality of the judgment, in a criminal case the trial court may postpone execution of the sentence in order to give the accused an opportunity to apply for a writ of error and supersedeas; such postponement, however, shall not extend the time limits hereinafter prescribed for applying for a writ of error. The date of entry of any final judgment, order, or decree shall be the date the judgment, order, or decree is signed by the judge.
Rule 1:2 Venue in Criminal Cases.
In criminal cases, questions of venue must be raised in the trial court and before the verdict in cases tried by a jury and before the finding of guilty in cases tried by a court.
Rule 1:3 Reporters and Transcripts of Proceedings in Courts.
Reporters shall be first duly sworn to take down and transcribe the proceedings faithfully and accurately to the best of their ability, and shall be subject to the control and discipline of the judge.
When a reporter takes down any proceeding in a court, any person interested shall be entitled to obtain a transcript of the proceedings or any part thereof upon terms and conditions to be fixed in each case by the judge.
The proceedings may be taken down by means of any recording device approved by the judge.
Rule 1:4 General Provisions as to Pleadings.
(a) Counsel tendering a pleading gives his assurance as an officer of the court that it is filed in good faith and not for delay.
(b) A pleading that is sworn to is an affidavit for all purposes for which an affidavit is required or permitted.
(c) Counsel or an unrepresented party who files a pleading shall sign it and state his address.
(d) Every pleading shall state the facts on which the party relies in numbered paragraphs, and it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense.
(e) An allegation of fact in a pleading that is not denied by the adverse party's pleading, when the adverse party is required by these Rules to file such pleading, is deemed to be admitted. An allegation in a pleading that the party does not know whether a fact exists shall be treated as a denial that the fact exists.
(f) Requirements of pleadings applicable to instruments not under seal shall apply to instruments under seal.
(g) Requirements of pleadings applicable to legal defenses shall apply to equitable defenses.
(h) The clerk shall note and attest the filing date on every pleading.
(i) The mention in a pleading of an accompanying exhibit shall, of itself and without more, make such exhibit a part of the pleading.
(j) Brevity is enjoined as the outstanding characteristic of good pleading. In any pleading a simple statement, in numbered paragraphs, of the essential facts is sufficient.
(k) A party asserting either a claim, counterclaim, cross-claim, or third-party claim or a defense may plead alternative facts and theories of recovery against alternative parties, provided that such claims, defenses, or demands for relief so joined arise out of the same transaction or occurrence. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or equitable grounds.
( l ) Every pleading, motion or other paper served or filed shall contain at the foot the office address and telephone number of the counsel of record submitting it, along with any facsimile number regularly used for business purposes by such counsel of record.
Rule 1:4A Special Rule for Pleadings in General District Courts. (Repealed.)
Rule 1:5 Counsel.
When used in these Rules, the word "counsel" includes a partnership, a professional corporation or an association of members of the Virginia State Bar practicing under a firm name.
When such firm name is signed to a pleading, notice or brief, the name of at least one individual member or associate of such firm must be signed to it. Signatures to briefs and petitions for rehearing may be printed or typed and need not be in handwriting.
Service on one member or associate of such firm shall constitute service on the firm. Service is not required to be made on foreign attorneys.
"Counsel of record" includes a counsel or party who has signed a pleading in the case or who has notified the other parties and the clerk in writing that he appears in the case. Counsel of record shall not withdraw from a case except by leave of court after notice to the client of the time and place of a motion for leave to withdraw.
Rule 1:6 Service of Notice to Take Depositions. (Rescinded, Reserved for Future Use.)
Rule 1:7 Computation of Time.
Whenever a party is required or permitted under these Rules to do an act within a prescribed time after service of a paper upon counsel of record, three (3) days shall be added to the prescribed time when the paper is served by mail, or one (1) day shall be added to the prescribed time when the paper is served by facsimile or commercial delivery service. With respect to Parts Five and Five A of the Rules, this Rule applies only to the time for filing a brief in opposition.
Rule 1:8 Amendments.
No amendments shall be made to any pleading after it is filed save by leave of court. Leave to amend shall be liberally granted in furtherance of the ends of justice.
In granting leave to amend the court may make such provision for notice thereof and opportunity to make response as the court may deem reasonable and proper.
Rule 1:9 Discretion of Court.
All steps and procedures in the clerk's office touching the filing of pleadings and the maturing of suits or actions may be reviewed and corrected by the court.
The time allowed for filing pleadings may be extended by the court in its discretion and such extension may be granted although the time fixed already has expired; but the time fixed for the filing of a motion challenging the venue shall in no case be extended except to the extent permitted by §8.01-264.
Rule 1:10 Verification.
If a statute requires a pleading to be sworn to, and it is not, or requires a pleading to be accompanied by an affidavit, and it is not, but contains all the allegations required, objection on either ground must be made within seven days after the pleading is filed by a motion to strike; otherwise the objection is waived. At any time before the court passes on the motion or within such time thereafter as the court may prescribe, the pleading may be sworn to or the affidavit filed.
Rule 1:11 Striking the Evidence.
If the court sustains a motion to strike the evidence of either party in a civil case being tried before a jury, or the evidence of the Commonwealth in a criminal case being so tried, then the court shall enter summary judgment or partial summary judgment in conformity with its ruling on the motion to strike.
If the court overrules a motion to strike the evidence and there is a hung jury, the moving party may renew the motion immediately after the discharge of the jury, and, if the court is of opinion that it erred in denying the motion, it shall enter summary judgment or partial summary judgment in conformity with its ruling on the motion to strike.
Rule 1:12 Service of Papers after the Initial Process.
All pleadings, motions and other papers not otherwise required to be served and requests for subpoenas duces tecum shall be served by delivering, dispatching by commercial delivery service, transmitting by facsimile or mailing a copy to each counsel of record on or before the day of filing.
Service pursuant to this rulehall be effective upon such delivery, dispatch, transmission or mailing, except that papers served by facsimile transmission completed after 5:00 p.m. shall be deemed served on the next day that is not a Saturday, Sunday, or legal holiday.
At the foot of such pleadings and requests shall be appended either acceptance of service or a certificate of counsel that copies were served as this Rule requires, showing the date of delivery, dispatching, transmitting or mailing.
Rule 1:13 Endorsements.
Drafts of orders and decrees shall be endorsed by counsel of record, or reasonable notice of the time and place of presenting such drafts together with copies thereof shall be served by delivering, dispatching by commercial delivery service, transmitting by facsimile or mailing to all counsel of record who have not endorsed them. Compliance with this Rule and with Rule 1:12 may be modified or dispensed with by the court in its discretion.
Rule 1:14 Preservation of the Record.
A court may authorize the use of electronic or photographic means for the preservation of the record or parts thereof.
Rule 1:15 Local Rules of Court.
(a) Whenever a local Rule is prescribed by a circuit court it shall be spread upon the order book and a copy with the date of entry shall be forthwith posted in the clerk's office, filed with the executive secretary of the Supreme Court, and furnished to attorneys regularly practicing before that circuit court; and whenever an attorney becomes counsel of record in any proceedings in a circuit court in which he does not regularly practice, it shall be his responsibility to ascertain the Rules of that court and abide thereby. The clerk shall, upon request, promptly furnish a copy of all Rules then in force and effect.
(b) Whenever a local Rule is prescribed by a circuit court providing for the orderly management of the civil docket by use of the praecipe system, the praecipe shall be substantially in the form appearing in the appendix of forms at the end of this Part One.
(c) Whenever a local Rule is prescribed by a circuit court providing for the submission of instructions prior to trial, such local rulehall be substantially in the form appearing in the appendix of forms at the end of this Part One.
(d) The chief judges of the circuit and juvenile and domestic relations district courts shall on or before December 31 of each year furnish the executive secretary of the Supreme Court, on forms provided by him, current general information relating to the management of the courts within each circuit and district. This information shall be assembled and published on or before July 1 of each year as an appendix to the Rules of the Supreme Court.
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First Chesapeake Criminal terms: First Tuesday in each month,
2:00 p.m. Civil terms: First Tuesday in each
month, 10:00 a.m.
Second Virginia Beach First Monday in each month unless holiday,
then following day.
Accomack First Monday in February, April, June,
August, October and December.
Northampton Second Monday in January, March, May, July,
September and November.
Third Portsmouth First Thursday in each month.
Fourth Norfolk First Wednesday in each month.
Fifth Isle of Wight Second Monday in January, March, May, July,
September and November.
Southampton Third Monday in January, March, May, July,
September and November.
Suffolk Fourth Monday in January, March, May, July,
September and November.
Sixth Hopewell Second Tuesday in February, April, June,
August, October and December.
Prince George Third Tuesday in January, March, May, July,
September and November.
Surry Fourth Tuesday in January, March, May, July,
September and November.
Sussex Second Tuesday in January, March, May, July,
September and November.
Greensville First Tuesday in February, April, June,
August, October and December.
Brunswick Fourth Tuesday in February, April, June,
August, October and December.
Seventh Newport News Criminal terms: Second Monday in each month.
Civil terms: Second Monday in January,
March, May, July, September and November.
Eighth Hampton First Monday in February, April, June,
August, October and December.
Ninth Williamsburg/ Third Wednesday in January, March, May,
James City July, September and November.
County
York Third Tuesday in January, March, May, July,
September and November.
Charles City First Tuesday in January, March, May, July,
and September, the first Wednesday in
November.
New Kent Second Monday in January, third Monday in
March, May, July, September and November.
Gloucester First Monday in January, March, May, July,
September and November.
Mathews Third Monday in January, March, May, July,
September and November.
Middlesex Fourth Monday in January, March, May, July,
September and November.
King William First Monday in February, April, June,
August, October and December.
King and Queen Second Monday in February, April, June,
August, October and December.
Tenth Halifax Second Monday in January, March, May, July,
September and November.
Mecklenburg Third Monday in February, April, June,
August and October and the second Monday in
December.
Lunenburg First Monday in February, April, June,
August, October and December.
Charlotte Tuesday after the first Monday in January,
March, May, July, September and November.
Prince Edward Tuesday after the third Monday in January,
April, June, September and November.
Buckingham Tuesday after the second Monday in January,
April, June, September and November.
Cumberland Tuesday following the fourth Monday in
January, April, June and September.
Appomattox Tuesday after the first Monday in April,
June, October and December.
Eleventh Powhatan Second Tuesday in February, April, June,
October and December.
Dinwiddie Third Tuesday in January, March, May, July,
September and November.
Nottoway First Tuesday in January, March, May, July,
September and November.
Amelia First Tuesday in February, April, June,
October and December.
Petersburg Criminal terms: Third Thursday in each month
except August. Civil terms: Third Wednesday
in each month except August.
Twelfth Chesterfield Criminal and Civil terms: Tuesday following
third Monday in January, and third Monday in
March, May, July, September and November.
Colonial Heights Second Monday in January, April and July and
Tuesday following the second Monday in
October.
Thirteenth Richmond City John Marshall Courts Building: terms: First
Monday in each month. Civil term days: First
Monday in March, June and December and third
Monday in September.
Manchester Courthouse: First Monday in each
month.
Fourteenth Henrico Criminal terms: Second Monday in January,
March, May, July, September and November.
Civil cases set second Monday, July,
October, January, April (2:00 p.m.) or may
be set by telephone.
Fifteenth Caroline First Wednesday in January, April, July and
October.
Essex Fourth Wednesday in January, April, July and
October.
Fredericksburg Fourth Monday in January, April, July and
October.
Hanover Third Tuesday in January, March, May, July,
September and November, Criminal - 9:00
a.m.; Civil - 2:00 p.m.
King George Second Thursday in January, April, July and
October.
Lancaster Fourth Friday in January, April, July and
October.
Northumberland Fourth Tuesday in January, April, July and
October.
Richmond Fourth Monday in January, April, July and
October.
Spotsylvania Third Monday in January, April, July and
October.
Stafford Criminal terms: First Monday of every month.
Civil terms: First Monday in January, April,
July and October.
Westmoreland Fourth Thursday in January, April, July and
October.
Sixteenth Charlottesville Third Monday in February, April, June,
August, October and December.
Madison First Monday in January, March, May, July,
September and November.
Louisa Second Monday in January, March, May, July,
September and November.
Greene Second Monday in February, April, June,
August, October and December.
Orange Fourth Monday in January, March, May, July,
September and November.
Albemarle First Monday in February, April, June,
August, October and December.
Goochland Second Tuesday in February, April, June,
August, October and December.
Culpeper Third Monday in February, April, June,
August, October and December.
Fluvanna Fourth Monday in February, April, June,
August and October and third Tuesday in
December.
Seventeenth Arlington Third Monday (or Tuesday, if holiday falls
on Monday) in February, April, June, August,
October and December.
Eighteenth Alexandria Second Monday in January, March, May, July,
September and November; at 9:00 a.m.; cases
may also be set for trial by telephone
(703-838-4123).
Nineteenth Fairfax Criminal terms: Tuesday following third
Monday in January, March, May, July,
September and November. Civil terms: Fourth
Monday in January, March, May, July,
September and November.
Twentieth Fauquier Misdemeanor Appeal Days: First Tuesday of
each month.
Loudoun Terms: Fourth Monday in January, March, May,
July, September and November.
Rappahannock Second Monday in February, April, June,
August and December and second Tuesday in
October.
Second Monday in January, March, May, July,
September and November.
Twenty-First Henry Third Tuesday in January, third Monday in
July, and the first Monday in April and
October.
Martinsville Criminal terms: Second Monday in February,
the first Monday in May, the fourth Monday
in July and the first Monday in November.
Civil terms: Third Wednesday in February,
April, June, August, October and December.
Patrick First Monday in March, June, September and
December.
Twenty-Second Danville First Monday in January, March, May, July,
September and November. Special terms: Last
Monday in April, June, August, and October.
Pittsylvania Third Monday in February, April, June,
August, October and December.
Franklin First Monday in February, April, June,
August, October and December.
Twenty-Third Roanoke County Criminal terms: First Friday in February,
April, June, October and December and the
second Friday in August. Civil terms: First
Friday in January, February, April, June,
August, October and December.
Roanoke City Criminal terms: First Monday in each month.
Civil terms: Tuesday after first Monday in
each month.
Salem Third Friday in February, May, July and
September and the second Friday in December.
Twenty-Fourth Lynchburg Criminal terms: First Monday in each month.
Civil terms: First Monday in each month.
Amherst Second Tuesday in February, April, June,
October and December.
Bedford First Tuesday in January, March, May, July,
September and November.
Campbell Second Monday in January, March, May, July,
September and November.
Nelson Fourth Tuesday in January, March, May,
September and November.
Twenty-Fifth Buena Vista Fourth Wednesday in January and July and the
first Monday in April, and the fourth Monday
in September.
Clifton Forge First Monday in February, May, July and
November.
Staunton Third Monday in January, April, July and
October.
Waynesboro Second Monday in January, March, May,
September and November.
Alleghany Second Monday in January, April and July,
and the first Tuesday after second Monday in
October.
Augusta Fourth Monday in January, April, July and
October.
Bath Third Monday (or Tuesday, if holiday falls
on Monday) in January, June and September
and the first Monday in April.
Botetourt First Monday in March, June, October and
December.
Craig Last Monday in February and the second
Monday in May, September and November.
Highland Third Tuesday in March, June, September and
December.
Rockbridge First Monday in February, May and November
and Tuesday following Labor Day in
September.
Twenty-Sixth Clarke Tuesday after the first Monday in January,
April, July and October.
Frederick Thursday after the first Monday in January,
April, July and October.
Page Fourth Monday in January, April, July and
October.
Shenandoah Wednesday after the second Monday in
January, April, July and October.
Warren First Monday in January, April, July and
October.
Winchester Tuesday after the second Monday in January,
April, July and October.
Rockingham Criminal terms: Third Monday in January,
April, July and October. Civil terms: First
Monday and Wednesday after third Monday each
month except Wednesday after third Monday
only in January and August.
Twenty-Seventh Bland Criminal terms: Second Monday in March,
June, September and December. Civil terms:
Immediately following end of criminal term.
Carroll The second Monday in March, the third Monday
in June and September and the first Monday
in December.
Floyd First day of March, June, September and
December.
Giles Second Tuesday in January, April, July and
October.
Grayson Fourth Friday in January, April, July and
October.
Montgomery Second Tuesday of January, April, July and
October.
Pulaski Third Monday in February and November, the
fourth Monday in May and the second Monday
in September.
Radford Third Monday in March and the tenth day in
June, September and December.
Wythe Third Monday in January, April, July and
October.
Twenty-Eighth Washington Fourth Tuesday in January, April, July and
October.
Smyth Fourth Tuesday in March, June and September
and second Tuesday in December.
Bristol Fourth Tuesday in February, May, August and
November.
Twenty-Ninth Buchanan Criminal terms: Second Monday in January,
April, July and October. Civil terms: Second
Tuesday in January, April, July and October.
Dickenson Criminal terms: Fourth Monday in March and
June and the third Monday in September and
December. Civil terms: Tuesday, following
Grand Jury (Grand Juries: Second Monday in
March, June and September; first Monday in
December).
Russell Second Monday in February, May, September
and November.
Tazewell Second Tuesday in February, May, August and
November.
Thirtieth Wise First Tuesday after the third Monday in
January and the third Monday in April, July
and October.
Scott First Monday in February, May, August and
November.
Lee First Monday in March, June and December and
second Monday in September.
Thirty-First Prince William First Monday in February, April, June,
August, October and December.
Rule 1:16 Size of Paper.
(a) All pleadings, motions, briefs, depositions, requests for discovery and responses thereto, and all other documents filed in any clerk's office in any proceeding pursuant to these Rules shall be produced on pages 8 1/2 by 11 inches in size and all typed material shall be double spaced except for quotations.
(b) This rulehall not apply to tables, charts, plats, photographs, and other material that cannot be reasonably reproduced on paper of that size.
(c) No paper shall be refused for failure to comply with the provisions of this Rule, but the clerk may require that the paper be redone in compliance with this Rule and substituted for the paper initially filed. Counsel shall certify that the substituted paper is identical in content to the paper initially filed.
(d) This rulehall become effective on January 1, 1984.
Rule 1:f-1 Appendix of Forms.
Rule 1:f-1.1 Praecipe (Rule 1:15(b)).
VIRGINIA: IN THE CIRCUIT COURT OF THE
..................,
Plaintiff
AT LAW NO. .....
v. or
.................., IN CHANCERY NO. .....
Defendant
PRAECIPE
I certify that the above styled cause is matured for trial on its merits and
request the Clerk to place it on the docket to be called on .................
date of next docket call
to be set for trial with ( ) or without ( ) a jury.
Dated this .......... day of .........., 19 .....
..............................................................................
Counsel for ..................................................................
CERTIFICATE OF SERVICE
I certify that on the .......... day of .........., 19...., I mailed or
delivered a true copy of the foregoing praecipe to all counsel of record
herein pursuant to the provisions of Rule 1:12 of the Rules of the Supreme
Court of Virginia, and served a true copy upon parties not represented by
counsel, if any.
..............................................................................
Counsel for .................................................................
Rule 1:f-2 Instructions (Rule 1:15(c)).
Counsel for all parties, unless compliance is waived by the court, shall, two days before a civil jury trial date, submit to the court a copy of all instructions such counsel proposes to request, noting thereon the authority or authorities relied upon for such instructions. Counsel may be required to exchange copies of proposed instructions. This rulehall not preclude the offering of additional instructions at the trial.
Rule 1A:1 PART ONE A
FOREIGN ATTORNEYS
Rule 1A:1.1 Foreign Attorneys - When Admitted to Practice in This State Without Examination.
Any person who has been admitted to practice law before the court of last resort of any state or territory of the United States or of the District of Columbia may file an application to be admitted to practice law in this Commonwealth without examination, if counsel licensed to practice here may be admitted to practice there without examination.
The applicant shall:
(1) File with the secretary of the Virginia Board of Bar Examiners an application, under oath, upon a form furnished by the Board.
(2) Furnish a certificate, signed by the presiding judge of the court of last resort of the jurisdiction in which the applicant is entitled to practice law, stating that the applicant has been so licensed for at least five years.
(3) Complete the Applicant's Character and Fitness Questionnaire and furnish a report of the National Conference of Bar Examiners, or such other report as the Board may prescribe, concerning the applicant's past practice and record, and pay the fee for such report.
(4) Pay a filing fee of five hundred dollars.
Thereafter, the Board will determine in accordance with guidelines approved by the Supreme Court whether the applicant has established by satisfactory evidence that he or she:
(a) Is a proper person to practice law.
(b) Has made such progress in the practice of law that it would be unreasonable to require the applicant to take an examination.
(c) Intends to practice full time as a member of the Virginia State Bar.
In the determination of these matters the Board may require the applicant to appear personally before the Board, the Character and Fitness Committee of the Board, or a member of either the Board or the Committee, and furnish such information as may be required.
If it is determined that the applicant has established that he or she meets all of the aforementioned requirements, the Board shall notify the applicant that some member of the Virginia State Bar who is qualified to practice before the Supreme Court may make an oral motion in open Court for the applicant's admission to practice law in this Commonwealth.
Upon such motion for admission, the applicant shall thereupon take and subscribe to the oaths required of attorneys at law, whereupon the Board shall issue to the applicant a certificate to practice law in the Commonwealth, and the applicant shall, upon payment of applicable dues, become an active member of the Virginia State Bar.
Rule 1A:2 Foreign Patent and Trademark Attorneys - When Admitted to Practice in the Courts of This State Limited to Patent and Trademark Law Without Examination.
A lawyer recognized to practice before the United States Patent and Trademark Office in patent and trademark cases, as that term is defined in § 54.1-3901(A), may file an application to be admitted to practice patent and trademark law, as that term is similarly defined, in the courts of this Commonwealth, without examination, if counsel licensed to practice here may be admitted to practice without examination in the state or territory of the United States or in the District of Columbia where such lawyer has been admitted to practice.
The applicant shall:
(1) File with the secretary of the Virginia Board of Bar Examiners an application, under oath, upon a form furnished by the Board.
(2) Furnish (i) a certificate, signed by the presiding judge of the court of last resort of the jurisdiction in which the applicant is entitled to practice law, stating that the applicant has been so licensed for at least five years, and (ii) a certificate, signed by the Commissioner of Patents and Trademarks or other appropriate official of the United States Patent and Trademark Office, stating that the applicant is recognized to practice before that office in patent and trademark cases.
(3) Complete the Applicant's Character and Fitness Questionnaire and furnish a report of the National Conference of Bar Examiners, or other such report as the Board may prescribe, concerning the applicant's past practice and record, and pay the fee for such report.
(4) Pay a filing fee of five hundred dollars.
Thereafter, the Board will determine in accordance with guidelines approved by the Supreme Court whether the applicant has established by satisfactory evidence that he or she:
(a) Is a proper person to practice law.
(b) Has made such progress in the practice of patent and trademark law that it would be unreasonable to require the applicant to take an examination.
(c) Intends to practice patent and trademark law full time as a member of the Virginia State Bar.
In the determination of these matters the Board may require the applicant to appear personally before the Board, the Character and Fitness Committee of the Board, or a member of either the Board or the Committee, and furnish such information as may be required.
If it is determined that the applicant has established that he or she meets all of the aforementioned requirements, the Board shall notify the applicant that some member of the Virginia State Bar who is qualified to practice before the Supreme Court may make an oral motion in open Court for the applicant's admission to practice patent and trademark law in this Commonwealth limited to patent, trademark, copyright and unfair competition causes.
Upon such motion for admission, the applicant shall thereupon take and subscribe to the oaths required of attorneys at law, whereupon the Board shall issue to the applicant a certificate to practice law in the Commonwealth limited to patent, trademark, copyright and unfair competition causes, and the applicant shall, upon payment of the applicable dues, become an active member of the Virginia State Bar.
No lawyer admitted pursuant to this rulehall hold himself or herself out as authorized to practice law generally in this Commonwealth.
Rule 1A:3 Revocation of Certificates Issued to Foreign Attorneys.
Following receipt of evidence satisfactory to the Supreme Court that a person who has been admitted to practice pursuant to Rule 1A:1 no longer satisfies the requirement of clause (c) of that section or that a person who has been admitted to practice pursuant to Rule 1A:2 no longer satisfies the requirement of clause (c) of that section, the Supreme Court may revoke the certificate issued to that person. Following receipt of evidence that a person who has been admitted to practice pursuant to Rule 1A:1 or Rule 1A:2 has been disbarred pursuant to Part Six of the Rules, the Supreme Court will revoke the certificate issued to that person.
Rule 1A:4 Foreign Attorneys - When Allowed by Comity to Participate in the Trial of a Case.
An attorney from another jurisdiction may be permitted to appear in and conduct a particular case in association with a member of the Virginia State Bar, if like courtesy or privilege is extended to members of the Virginia State Bar in such other jurisdiction. The court in which such case is pending shall have full authority to deal with the resident counsel alone in all matters connected with the litigation. If it becomes necessary to serve notice or process in the case upon counsel, any notice or process served upon the associate resident counsel shall be as valid as if personally served upon the nonresident attorney.
Except where a party conducts his own case, a pleading, or other paper required to be served (whether relating to discovery or otherwise) shall be invalid unless it is signed by a member of the Virginia State Bar.
Rule 2:1 PART TWO
EQUITY PRACTICE AND PROCEDURE
Rule 2:1.1 Filing of Pleadings.
Pleading permitted to be filed by these Rules or by leave of court shall be filed by the clerk when tendered and the date of filing noted and attested thereon.
Rule 2:2 Commencement of Suits in Equity - The Bill of Complaint.
A suit in equity shall be commenced by filing a bill of complaint in the clerk's office. The suit is then instituted and pending as to all parties defendant thereto. The statutory writ tax and clerk's fees shall be paid before the subpoena in chancery is issued.
The bill shall be captioned with the name of the court and the full style of the suit. The requirements of Code §8.01-290 may be met by giving the address or other data after the name of each defendant.
It shall be sufficient for the prayer of the bill to ask for the specific relief sought, and to call for answer under oath if desired. Without more it will be understood that all the defendants mentioned in the caption are made parties defendant and required to answer the bill of complaint; that proper process against them is requested; that answers under oath are waived, except when required by law; that all proper references, inquiries, accounts and decrees are sought; and that such other and further and general relief as the nature of the case may require and to equity may seem meet is prayed for and may be granted. No formal conclusion is necessary.
Rule 2:3 Copies of Bill of Complaint.
The plaintiff shall furnish the clerk when the bill is filed with as many copies thereof as there are defendants upon whom it is to be served.
It is not required that copies of exhibits filed with the bill be furnished or served.
A deficiency in the number of copies of the bill shall not affect the pendency of the suit. If the plaintiff fails to furnish the required number of copies, the clerk shall request him to do so, and if he fails to do so promptly, the clerk shall bring the fact to the attention of the judge, who shall notify the plaintiff's counsel, or the plaintiff if he have no counsel, to furnish them by a specified date. If the required copies are not furnished on or before that date, the court may enter an order dismissing the suit.
Rule 2:4 The Subpoena in Chancery.
The process of the courts in equity suits shall be a subpoena in chancery in substantially this form:
Commonwealth of Virginia
In the ......... Court of the ...... of ....................................
Subpoena in Chancery
Suit No. ...
The party upon whom this writ and the attached paper are served is hereby
notified that unless within twenty-one (21) days after such service response
is made by filing in the clerk's office of this court a pleading in writing,
in proper legal form, the allegations and charges may be taken as admitted and
the court may enter a decree against such party either by default or after
hearing evidence.
Appearance in person is not required by this subpoena.
Done in the name of the Commonwealth of Virginia, this ..... day of ...,
19..
...................., Clerk.
Upon the commencement of a suit in equity defendants may appear voluntarily and file responsive pleadings and may appear voluntarily and waive process, but in cases of divorce or annulment of marriage only in accordance with the provisions of the controlling statutes. With respect to defendants who do not appear voluntarily and/or file responsive pleadings or waive service of process, the clerk shall issue subpoenas and securely attach one to and upon the front of each copy of the bill to be served. The copies of the bill, with a subpoena so attached, shall be delivered by the clerk for service together as the plaintiff may direct.
Except when he is sued for divorce or annulment of his marriage or a judgment in personam is sought against him, a subpoena need not be issued for or served upon a defendant who is a person under a disability (except as otherwise provided in § 8.01-297), the procedure described in Code §8.01-9 constituting due process as to such defendants.
The clerk shall on request issue additional subpoenas, dating them as of the day of issuance.
No decree shall be entered against a defendant who was served with process more than one year after the institution of the suit against him unless the court finds as a fact that the plaintiff exercised due diligence to have timely service on him.
Rule 2:5 Proof of Service.
Returns shall be made on a paper styled "Proof of Service" which shall be substantially in this form:
Virginia: In the ........................ Court of the ............... of ..........: .................... ) ) v. (short style) ) Proof of Service ) .................... ) Returns shall be made hereon, showing service of subpoena in chancery issued ...................., 19 ...., with copy of bill of complaint filed ............, 19 ...., attached.
The clerk shall prepare as many as may be needed and deliver them with the subpoena and copies of the bill.
Returns shall be made thereon and shall show when, where, how and upon whom service was made.
The subpoena with copy of the bill attached shall constitute and be served as one paper.
It shall be the duty of all persons eligible to serve process to make service within five days after receipt, and make return as to those served within seventy-two hours after the earliest service upon any party shown on each Proof of Service; but failure to make timely service and return shall not prejudice the rights of any party except as provided in Rule 2:4.
Additional copies of the Proof of Service may be obtained from the clerk and returns thereon made in similar manner.
Rule 2:6 Orders of Publication. (Rescinded, Reserved for Future Use.)
Rule 2:7 Defendant's Response.
A defendant may at any time before he is in default file in the clerk's office his pleadings in response.
The cause is set for hearing and docketed as to each defendant when his pleading is filed, whether upon voluntary appearance or in response to process.
A defendant is "in default" if he has not filed a pleading and (1) a period of more than twenty-one days has elapsed after (i) due service of a subpoena in chancery upon him in this State, (ii) due service upon him outside this State under Code §8.01-320, or (iii) his acceptance or waiver of process, or (2) the period within which he may appear to protect his interests, as specified in an order of publication duly executed, has elapsed.
Rule 2:8 Docketing Upon Default.
If a defendant fails to file a pleading before he is in default, the cause is set for hearing and docketed as to such defendant and, unless the suit is for divorce or annulling a marriage or unless the defendant was served by order of publication and has not appeared generally, the bill is taken for confessed as to him. No decree on default shall be entered when service of process is effected by posting pursuant to § 8.01-296(2)(b), until ten days' notice shall have been given as required by that section.
Rule 2:9 Provisions Applicable Only to Suits for Divorce or for Annulling a Marriage. (Rescinded, Reserved for Future Use.)
Rule 2:10 Replication.
Unless the plaintiff expressly declines to reply to an answer or plea he shall be deemed to have filed a general replication thereto.
Rule 2:11 Pleas in Abatement. (Rescinded, Reserved for Future Use.)
Rule 2:12 Answer.
When the court has entered its order overruling all motions, demurrers and other pleas filed by a defendant, such defendant shall, unless he has already done so, file his answer within twenty-one days after the entry of such order, or within such shorter or longer time as the court may prescribe. If he fails to do so the bill shall, except in suits for annulling a marriage or for divorce, stand taken for confessed as to him. But in no case shall the bill stand for confessed or shall relief in personam be granted against a defendant proceeded against by order of publication who has not appeared generally.
Rule 2:13 Cross-Bill Against Plaintiff.
A defendant may, at any time when he would not be in default if he had not filed a pleading, or thereafter by leave of court, file a cross-bill which seeks relief against the plaintiff but not against other defendants or third parties. When such a cross-bill is filed, it shall not be necessary to issue process thereon against the plaintiff, but the cross-bill shall be served as provided by Rule 1:12 and, in a suit for divorce or for annulling a marriage, shall not be taken for confessed.
The plaintiff shall file his pleadings in response to such cross-bill within twenty-one days after it is served.
Rule 2:14 Cross-Bill Against Codefendants or Third Parties.
A defendant may by cross-bill, filed at any time before he is in default, or thereafter by leave of court, assert against other defendants or against new parties any claim germane to the subject matter of the suit.
Such a cross-bill is a new suit and all provisions of these Rules applicable to bills and subpoenas, except those provisions requiring payment of writ tax and clerk's fees, shall apply to such cross-bills, and all provisions of these Rules applicable to defendants shall apply to parties on whom such cross-bills are served.
Rule 2:15 Interveners.
A new party may by petition filed by leave of court assert any claim or defense germane to the subject matter of the suit.
All provisions of these Rules applicable to bills and subpoenas, except those provisions requiring payment of writ tax and clerk's fees, shall apply to such petitions; and all provisions of these Rules applicable to defendants shall apply to the parties on whom such petitions are served.
In creditors' suits, mechanics' lien suits, and the like, the practice as respects interveners obtaining prior to the adoption of these Rules is retained.
Rule 2:16 Substitution of Parties.
If a party becomes incapable of prosecuting or defending because of death, insanity, conviction of felony, removal from office, or other cause, his successor in interest may be substituted as a party in his place.
Substitution shall be made on motion of the successor or of any party to the suit. If the successor does not make or consent to the motion, the party making the motion shall file it in the clerk's office and the procedure thereon shall be as if the motion were a bill against the successor.
Rule 2:17 When Notice of Taking Proofs and Other Proceedings Dispensed With.
No notice of the taking of depositions, or of hearings before a commissioner, or of the hearing of evidence orally before the court, or of any other proceedings, shall be required to be given to any defendant as to whom a bill stands taken for confessed, or to any defendant proceeded against by order of publication, or to any defendant served with process out of state, except that written notice of any further proceedings shall be given to counsel of record, if any.
Evidence may be heard orally before the court in any case; but if there are defendants proceeded against by order of publication who have not appeared, such evidence shall be reduced to writing and preserved as a part of the record. In other cases preservation of the evidence may be required by the judge in his discretion.
Rule 2:18 Proceedings Before a Commissioner in Chancery.
(a) Upon entry of a decree by the court referring any matter to a commissioner in chancery, the clerk shall mail or deliver to the commissioner a copy of the decree of reference. Unless the decree prescribes otherwise, the commissioner shall promptly set a time and place for the first meeting of the parties or their attorneys, and shall notify the parties or their attorneys of the time and place so set. It shall be the duty of the commissioner to proceed with all reasonable diligence to execute the decree of reference.
(b) A commissioner may require the production before him of evidence upon all matters embraced in the decree of reference including the production of all books, papers, vouchers, documents and writings applicable thereto. He shall have the authority to call witnesses or the parties to the action to testify before him and may himself examine them upon oath. He may Rule upon the admissibility of evidence unless otherwise directed by the decree of reference; but when a party so requests, the commissioner shall cause a record to be made of all proffered evidence which is excluded by the commissioner as inadmissible.
(c) The Commissioner shall prepare a report stating his findings of fact and conclusions of law with respect to the matters submitted to him by the decree of reference. He shall file the report, together with all exhibits admitted in evidence and a transcript of the proceedings and of the testimony before him, with the clerk of the court. He shall mail or deliver to counsel of record and to parties not represented by counsel, using the last address shown in the record, written notice of the filing of the report. Provided, however, that in divorce cases a copy of the report shall accompany the notice. Provided, further, that no such notice or copy shall be given parties who have not appeared in the proceeding.
Rule 2:19 Matters Not Covered by These Rules.
In matters not covered by these Rules the established practice and procedure in equity is continued.
Rule 2:20 Statutory Interpleader.
Proceedings brought pursuant to statutory provisions relating to interpleader shall, to the extent not inconsistent with the governing statutes, be conducted in accordance with the Rules contained in this Part Two.
Rule 2:21 Summary Judgment.
Except in a suit for divorce or for the annulment of marriage, either party may make a motion for summary judgment at any time after the parties are at issue. If it appears from the pleadings, the orders, if any, made at a pretrial conference, the admissions, if any, in the proceedings, or, upon sustaining a motion to strike the evidence, that the moving party is entitled to judgment, the court shall enter judgment in his favor. Summary judgment, interlocutory in nature, may be entered as to the undisputed portion of a contested claim or on the issue of liability alone although there is a genuine issue as to the amount of damages. Summary judgment shall not be entered if any material fact is genuinely in dispute. No motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the action shall agree that such deposition may be so used.
Rule 2A:1 PART TWO A
APPEALS PURSUANT TO THE ADMINISTRATIVE PROCESS ACT
Rule 2A:1.1 Authorization; Definitions; Application.
(a) These Rules are promulgated pursuant to §9-6.14:16 of the Code of Virginia.
(b) All terms used in this part that are defined in Chapter 1.1:1 of Title 9 are used with the definitions therein contained. In addition, the term "agency secretary" means the secretary of the agency or, if there be none, the executive officer or a member of the agency. Every agency may, by regulation, name some individual to perform the function of agency secretary. The term "party" means any person affected by and claiming the unlawfulness of a regulation or a party aggrieved who asserts a case decision is unlawful and any other affected person or aggrieved person who appeared in person or by counsel at a hearing, as defined in §9-6.14:4 E, with respect to the regulation or case decision as well as the agency itself.
(c) These Rules shall apply to the review of, by way of direct appeal from, the adoption of a regulation or the decision of a case by an agency.
Rule 2A:2 Notice of Appeal.
Any party appealing from a regulation or case decision shall file, within 30 days after adoption of the regulation or after service of the final order in the case decision, with the agency secretary a notice of appeal signed by him or his counsel. In the event that service of a case decision upon a party is accomplished by mail, 3 days shall be added to the 30-day period. Service under this rulehall be consistent with §9-6.14:14 and, if made by mail, shall be sufficient if sent by registered or certified mail to the party's last address known to the agency. The notice of appeal shall identify the regulation or case decision appealed from, shall state the names and addresses of the appellant and of all other parties and their counsel, if any, shall specify the circuit court to which the appeal is taken, and shall conclude with a certificate that a copy of the notice of appeal has been mailed to each of the parties. Any copy of a notice of appeal that is sent to a party's counsel or to a party's registered agent, if the party is a corporation, shall be deemed adequate and shall not be a cause for dismissal of the appeal; provided, however, sending a notice of appeal to an agency's counsel shall not satisfy the requirement that a notice of appeal be filed with the agency secretary. The omission of a party whose name and address cannot, after due diligence, be ascertained shall not be cause for dismissal of the appeal. Any final agency case decision as described in §9-6.14:14 shall advise the party of the time for filing a notice of appeal under this Rule.
Rule 2A:3 Record on Appeal.
(a) If a formal hearing was held before the agency, the appellant shall deliver to the agency secretary with his notice of appeal, or within 30 days thereafter, a transcript of the testimony if it was taken down in writing, or if it was not taken down in writing, a statement of the testimony in narrative form. If the agency secretary deems the statement inaccurate, he may append a further statement specifying the inaccuracies.
(b) The agency secretary shall prepare and certify the record as soon as possible after the notice of appeal and transcript or statement of testimony is filed and shall, as soon as it has been certified by him, transmit the record to the clerk of the court named in the notice of appeal. In the event of multiple appeals in the same proceeding, only one record need be prepared and it shall be transmitted to the clerk of the court named in the first notice of appeal filed. If there are multiple appeals to different courts from the same regulation or case decision, all such appeals shall be transferred to and heard by the court having jurisdiction that is named in the notice of appeal that is the first to be filed. The agency secretary shall notify all parties in writing when the record is transmitted, naming the court to which it is transmitted. Papers filed in any other clerk's office shall be mailed by such clerk to the proper clerk's office.
(c) The record on appeal from an agency proceeding shall consist of all notices of appeal, any application or petition, all orders or regulations promulgated in the proceeding by the agency, the opinions, the transcript or statement of the testimony filed by appellant, and all exhibits accepted or rejected, together with such other material as may be certified by the agency secretary to be a part of the record.
Rule 2A:4 Petition for Appeal.
(a) Within 30 days after the filing of the notice of appeal, the appellant shall file his petition for appeal with the clerk of the circuit court named in the first notice of appeal to be filed. Such filing shall include all steps provided in Rules 2:2 and 2:3 to cause a copy of the petition to be served (as in the case of a bill of complaint in equity) on the agency secretary and on every other party.
(b) The petition for appeal shall designate the regulation or case decision appealed from, specify the errors assigned, state the reasons why the regulation or case decision is deemed to be unlawful and conclude with a specific statement of the relief requested.
Rule 2A:5 Further Proceedings.
Further proceedings shall be held as in a suit in equity and the Rules contained in Part Two, where not in conflict with the Code of Virginia or this part, shall apply, but no matter shall be referred to a commissioner in chancery. The provisions of Part Four shall not apply and, unless ordered by the court, depositions shall not be taken.
Rule 3:1 PART THREE
PRACTICE AND PROCEDURE IN ACTIONS AT LAW
Rule 3:1.1 Application.
These Rules apply to all civil actions at law in a court of record seeking a judgment in personam for money only, actions for establishment of boundaries, ejectment, unlawful detainer, detinue, a refund of taxes and declaratory judgments (when at law), including cases appealed or removed to such courts from inferior courts whenever applicable to such cases. In matters not covered by these Rules, the established practices and procedures are continued.
Rule 3:2 Filing of Pleadings; Return of Certain Writs.
The clerk shall receive and file all pleadings without order of the court. Any controversy over whether a party who has filed a pleading has a right to file it shall be decided by the court.
No writ shall be returnable more than ninety days after its date unless a longer period is provided by statute.
Rule 3:3 The Notice of Motion for Judgment.
(a) Commencement of Action. An action shall be commenced by filing in the clerk's office a motion for judgment. The action is then instituted and pending as to all parties defendant thereto. The statutory writ tax and clerk's fees shall be paid before the notice of motion for judgment is issued.
The motion shall contain a caption setting forth the name of the court and the title of the action, which shall include the names of all the parties. The requirements of Code §8.01-290 may be met by giving the address or other data after the name of each defendant.
(b) Copies to Be Served. The plaintiff shall furnish the clerk when the motion for judgment is filed with as many copies thereof as there are defendants upon whom it is to be served.
It is not required that copies of exhibits filed with the motion for judgment be furnished or served except when the exhibit is a statement of the account on which the action is brought.
A deficiency in the number of copies of the motion for judgment shall not affect the pendency of the action. If the plaintiff fails to furnish the required number of copies, the clerk shall request him to do so, and if he fails to do so promptly, the clerk shall bring the fact to the attention of the judge, who shall notify the plaintiff's counsel, or the plaintiff if he has no counsel, to furnish them by a specified date. If the required copies are not furnished on or before that date, the court may enter an order dismissing the action.
(c) Form of the Notice. The notice to be given of the motion for judgment shall be substantially in this form:
Commonwealth of Virginia
In the . . . . . . . . . . . . . . . . . . . Court of the
. . . . . . . . . . . of . . . . . . . . . . .:
Notice of Motion for Judgment
To: Action No. . . . . . . . . . . .
(insert names of all defendants)
You are hereby notified that unless within twenty-one (21) days after service of this notice of motion for judgment on you response is made by filing in the clerk's office of this court a pleading in writing, in proper legal form, judgment may be entered against you by default.
Done in the name of the Commonwealth of Virginia this . . . . . . . . . . .
day of . . . . . . . . . . . , 19 . . . . .
. . . . . . . . . . . . . . . . . . . . . ., Clerk.
The clerk shall issue the notice and attach it to a copy of the motion for judgment, and the combined papers shall constitute the notice of motion for judgment to be served as a single paper. The clerk shall deliver the notice of motion for judgment for service as plaintiff may direct. The clerk shall on request issue additional notices dating them as of the day of issuance.
No judgment shall be entered against a defendant who was served with process more than one year after the commencement of the action against him unless the court finds as a fact that the plaintiff exercised due diligence to have timely service on him.
Rule 3:4 Proof of Service.
Returns shall be made on a paper styled "Proof of Service" which shall be substantially in this form:
Virginia:
In the ........................ Court of the ............... of ..........:
.................... )
)
v. (short style) ) Proof of Service
)
.................... )
Returns shall be made hereon showing service of notice issued ........, 19
...., with copy of motion for judgment filed ............, 19 ...., attached.
The clerk shall prepare as many as may be needed and deliver them with the copies of the notice of motion for judgment.
Returns shall be made thereon and shall show when, where, how and upon whom service was made.
It shall be the duty of all persons eligible to serve process to make service within five days after receipt, and make return as to those served within seventy-two hours after the earliest service upon any party shown on each Proof of Service; but failure to make timely service and return shall not prejudice the rights of any party except as provided in Rule 3:3.
Additional copies of the Proof of Service may be obtained from the clerk and returns thereon made in similar manner.
Rule 3:5 Defendant's Response.
A defendant may within twenty-one days after service on him of the notice of motion for judgment file in the clerk's office his pleadings in response, and if he fails to file a pleading he is in default. A motion for a bill of particulars shall be deemed a pleading in response. Pleas of the general issue are abolished. If a defendant files no other pleading than grounds of defense, he shall file his grounds of defense within said time.
Rule 3:6 Pleas in Abatement. (Rescinded, Reserved for Future Use.)
Rule 3:7 Grounds of Defense.
When the court has entered its order overruling all motions, demurrers and other pleas filed by a defendant, such defendant shall, unless he has already done so, file his grounds of defense within twenty-one days after entry of such order, or within such shorter or longer time as the court may prescribe. If he fails to do so he is in default.
An order requiring or permitting the plaintiff to file a bill of particulars or amended motion for judgment shall fix the time within which it may be filed, and shall also fix the time within which the defendant shall file his pleadings, unless he relies on the pleadings already filed.
Rule 3:8 Counterclaim.
Within twenty-one days after service on him of the notice of motion for judgment, a defendant may, at his option, plead as a counterclaim any cause of action at law for a money judgment in personam that he has against the plaintiff or all plaintiffs jointly, whether or not it grows out of any transaction mentioned in the notice of motion for judgment, whether or not it is for liquidated damages, whether it is in tort or contract, and whether or not the amount demanded in the counterclaim is greater than the amount demanded in the notice of motion for judgment. The court in its discretion may order a separate trial of any cause of action asserted in a counterclaim.
Rule 3:9 Cross-Claim.
A defendant may, at his option, plead as a cross-claim any cause of action that he has or may have against one or more other defendants growing out of any matter pleaded in the motion for judgment. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. The court in its discretion may order a separate trial of any cause of action asserted in a cross-claim.
A cross-claim shall, subject to the provisions of Rule 1:9, be filed within twenty-one days after service of the notice of motion for judgment on the defendant asserting the cross-claim.
A cross-claim is a new action and all provisions of these Rules applicable to notices of motion for judgment shall apply to cross-claims, except those provisions requiring payment of writ tax and clerk's fees; and all provisions of these Rules applicable to defendants shall apply to the parties on whom cross-claims are served.
Rule 3:9A Joinder of Additional Parties.
(a) Persons to Be Joined if Feasible. A person who is subject to service of process may be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff.
(b) Method of Joinder. A motion to join an additional party shall, subject to the provisions of Rule 1:9, be filed with the clerk within twenty-one days after service of the motion for judgment and shall be served on the party sought to be joined who shall thereafter be subject to all provisions of these Rules, except the provisions requiring payment of writ tax and clerk's fees.
(c) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
(d) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a) hereof who are not joined, and the reasons why they are not joined.
Rule 3:10 Third-Party Practice.
(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may file and serve a third-party motion for judgment upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave therefor if he files the third-party motion for judgment not later than twenty-one days after he serves his original pleading in response. Otherwise he must obtain leave therefor on motion after notice to all parties to the action. The person served with the third-party motion for judgment, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff's claim as provided in Rules 3:5 and 3:7 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in rule 3:8 and 3:9. The third-party defendant may assert against the plaintiff any defenses that the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may, at his option, within twenty-one days after service of the third-party motion for judgment upon the third-party defendant, assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in rule 3:5 and 3:7 and his counterclaims and cross-claims, including claims against the plaintiff, as provided in rule 3:8 and 3:9. Any party may move to strike the third-party motion for judgment, or for its severance or separate trial. A third-party defendant may proceed under this Rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant.
(b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances that under this Rule would entitle a defendant to do so.
Rule 3:11 Pleading to Counterclaims and Cross-Claims.
A party on whom a counterclaim or cross-claim is served shall plead to it in the same manner as if it were a notice of motion for judgment.
Rule 3:12 Reply.
If a plea, motion or affirmative defense sets up new matter and contains words expressly requesting a reply, the adverse party shall within twenty-one days file a reply admitting or denying such new matter. If it does not contain such words, the allegation of new matter shall be taken as denied or avoided without further pleading. All allegations contained in a reply shall be taken as denied or avoided without further pleading.
Rule 3:13 Parties at Issue.
The parties are at issue and the case is matured for trial and shall be placed on the trial docket when the pleadings required to be filed have been filed, or the time for filing them has expired.
Rule 3:14 New Parties.
New parties may be added, by leave of court, on motion of the plaintiff by order of the court at any stage of the case as the ends of justice may require. The motion, accompanied by an amended motion for judgment, shall be served on the existing parties as required by Rule 1:12. If the motion is granted, the amended motion for judgment shall be filed in the clerk's office and all the provisions of Rule 3:3 shall apply as to the new parties, but no writ tax, clerk's fee or deposit for costs is required. And all defendants shall file pleadings in response thereto as required by these rule.
Rule 3:15 Substitution of Parties.
If a party becomes incapable of prosecuting or defending because of death, insanity, conviction of felony, removal from office, or other cause, his successor in interest may be substituted as a party in his place.
Substitution shall be made on motion of the successor or of any party to the action. If the successor does not make or consent to the motion, the party making the motion shall file it in the clerk's office and the procedure thereon shall be as if the motion were an original motion for judgment against the successor.
Rule 3:16 General Provisions as to Pleadings.
(a) All motions in writing, including a motion for a bill of particulars and a motion to dismiss, are pleadings.
(b) An allegation of negligence or contributory negligence is sufficient without specifying the particulars of the negligence. On motion made promptly, a bill of particulars may be ordered to amplify any pleading that does not, in the opinion of the court, comply with this Rule . A bill of particulars that fails to inform the opposite party fairly of the true nature of the claim or defense may, on motion made promptly, be stricken and an amended bill of particulars ordered. If the amended bill of particulars fails to inform the opposite party fairly of the true nature of the claim or defense, the pleading not so amplified and the bills of particulars may be stricken.
(c) Every order requiring a bill or amended bill of particulars shall fix the time within which it is to be filed.
(d) Contributory negligence shall not constitute a defense unless pleaded or shown by the plaintiff's evidence.
(e) An allegation that an action is barred by the statute of limitations is sufficient without specifying the particular statute relied on.
(f) Grounds of defense, counterclaims, cross-claims, pleas, demurrers, affirmative defenses and motions may all be included in the same paper if they are separately identified.
Rule 3:17 Judgment by Default.
A defendant who fails to plead to a notice of motion for judgment within the required time is in default. He waives trial by jury and all objections to the admissibility of evidence. He is not entitled to notice of any further proceedings in the case, including notice to take depositions, except that written notice of any further proceedings shall be given to counsel of record, if any. When service of process is effected by posting no judgment by default shall be entered until the requirements of Code § 8.01-296(2)(b) have been satisfied. The court shall, on motion of the plaintiff, enter judgment for the amount appearing to the court to be due. If the relief demanded is unliquidated damages, the court shall hear evidence and fix the amount thereof, unless the plaintiff demands trial by jury, in which event, a jury shall be impaneled to fix the amount of damages.
Rule 3:18 Summary Judgment.
Either party may make a motion for summary judgment at any time after the parties are at issue. If it appears from the pleadings, the orders, if any, made at a pretrial conference, the admissions, if any, in the proceedings, or, upon sustaining a motion to strike the evidence, that the moving party is entitled to judgment, the court shall enter judgment in his favor. Summary judgment, interlocutory in nature, may be entered as to the undisputed portion of a contested claim or on the issue of liability alone although there is a genuine issue as to the amount of damages. Summary judgment shall not be entered if any material fact is genuinely in dispute. No motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the action shall agree that such deposition may be so used.
Rule 3A:1 PART THREE A
CRIMINAL PRACTICE AND PROCEDURE
Rule 3A:1.1 Scope.
These rule govern criminal proceedings in circuit courts and juvenile and domestic relations district courts (except proceedings concerning a child in a juvenile and domestic relations district court) and before the magistrates defined in Rule 3A:2 except for cases which have been returned to the general district court. Special statutes applicable to practices and procedures in juvenile and domestic relations district courts are incorporated herein by this reference and in such cases shall prevail over the general Rule set forth in Part 3A.
Rule 3A:2 Purpose and Interpretation; Definitions.
(a) Purpose and Interpretation. These rule are intended to provide for the just determination of criminal proceedings. They shall be interpreted so as to promote uniformity and simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. Errors, defects, irregularities or variances that do not affect substantive rights shall not constitute reversible error.
(b) Definitions. Except as otherwise expressly provided in this Part Three A or unless the context otherwise requires:
(1) "Clerk" includes deputy clerk.
(2) "Commonwealth's attorney" includes assistant or acting Commonwealth's attorney.
(3) "Continuance" includes adjournment or recess.
(4) "Indictment" includes presentment and information filed upon presentment.
(5) "Magistrate" means a judicial or quasi-judicial officer authorized to issue arrest and search warrants, commit arrested persons to jail or admit them to bail, or conduct preliminary hearings.
(6) "Recognizance" means an undertaking, with or without surety or other security, made before a magistrate to perform one or more acts - for example, to appear in court. A recognizance may be written or oral but, if oral, shall be evidenced by a memorandum signed by the magistrate.
Rule 3A:3 The Complaint.
The complaint shall consist of sworn statements of a person or persons of fact relating to the commission of an alleged offense. The statements shall be made upon oath before a magistrate empowered to issue arrest warrants. The magistrate may require the sworn statements to be reduced to writing and signed.
Rule 3A:4 Arrest Warrant or Summons.
(a) Issuance. More than one warrant or summons may issue on the same complaint. A warrant may be issued by a judicial officer if the accused fails to appear in response to a summons.
(b) Form of Summons. A summons, whether issued by a magistrate or a law-enforcement officer, shall command the accused to appear at a stated time and place before a court of appropriate jurisdiction in the county, city or town in which the summons is issued. It shall (i) state the name of the accused or, if his name is unknown, set forth a description by which he can be identified with reasonable certainty, (ii) describe the offense charged and state whether the offense is a violation of state, county, city or town law, and (iii) be signed by the magistrate or the law-enforcement office, as the case may be.
(c) Execution and Return. If a warrant has been issued but the officer does not have the warrant in his possession at the time of the arrest, he shall (i) inform the accused of the offense charged and that a warrant has been issued, and (ii) deliver a copy of the warrant to the accused as soon thereafter as practicable.
Rule 3A:5 The Grand Jury.
(a) Who May Be Present. Only the grand jurors and the witness under examination and, if directed by the court, an interpreter shall be present during the hearing of evidence by a grand jury. Only the grand jurors shall be present during their deliberations and voting.
(b) Secrecy. No obligation of secrecy may be imposed upon any person except in accordance with law.
(c) Finding and Return of Indictment. The indictment shall be endorsed ""A True Bill'' or ""Not a True Bill'' and signed by the foreman. The indictment shall be returned by the grand jury in open court.
(d) Motion to Dismiss. A motion to dismiss the indictment may be based on constitutional objections to the array or on the lack of legal qualification of an individual juror.
Rule 3A:6 The Indictment and the Information.
(a) Contents. The indictment or information, in describing the offense charged, shall cite the statute or ordinance that defines the offense or, if there is no defining statute or ordinance, prescribes the punishment for the offense. Error in the citation of the statute or ordinance that defines the offense or prescribes the punishments therefor, or omission of the citation, shall not be grounds for dismissal of an indictment or information, or for reversal of a conviction, unless the court finds that the error or omission prejudiced the accused in preparing his defense.
(b) Joinder of Offenses. Two or more offenses, any of which may be a felony or misdemeanor, may be charged in separate counts of an indictment or information if the offenses are based on the same act or transaction, or on two or more acts or transactions that are connected or constitute parts of a common scheme or plan.
(c) Joinder of Defendants. Two or more accused may be charged with a count(s) of an indictment, if they are charged with participating in contemporaneous and related acts or occurrences or in a series of acts or occurrences constituting an offense or offenses.
(d) Form. The indictment or information need not contain a formal commencement or conclusion. The return of an indictment shall be signed by the foreman of the grand jury, and the information shall be signed by the Commonwealth's attorney.
Rule 3A:7 Capias or Summons Upon Indictment or Information.
(1) Capias. The form of the capias shall be the same as that provided for a warrant except that it shall be signed by the clerk and shall state that an indictment or information has been filed against the accused.
(2) Summons. The summons shall be in the same form as the capias except that it shall summons the accused to appear before the court at a stated time and place.
(1) Execution. The capias shall be executed as provided in Rule 3A:4(c).
(2) Return. The officer executing a capias or summons shall endorse the date of execution thereon and make return thereof to the court that issued the capias or summons. At the request of the Commonwealth's attorney made at any time while the indictment or information is pending, a capias returned unexecuted and not cancelled or a summons returned unexecuted or a duplicate thereof may be delivered by the clerk to any authorized person for execution.
Rule 3A:8 Pleas.
(a) Pleas by a Corporation. A corporation, acting by counsel or through an agent, may enter the same pleas as an individual.
(b) Determining Voluntariness of Pleas of Guilty or Nolo Contendere. A circuit court shall not accept a plea of guilty or nolo contendere without first determining that the plea is made voluntarily with an understanding of the nature of the charge and the consequences of the plea.
(1) The attorney for the Commonwealth and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon entry by the defendant of a plea of guilty, or in a misdemeanor case a plea of nolo contendere, to a charged offense, or to a lesser or related offense, the attorney for the Commonwealth will do any of the following:
(A) Move for nolle prosequi or dismissal of other charges;
(B) Make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding on the court;
(C) Agree that a specific sentence is the appropriate disposition of the case.
In any such discussions under this Rule , the court shall not participate.
(2) If a plea agreement has been reached by the parties, it shall, in every felony case, be reduced to writing, signed by the attorney for the Commonwealth, the defendant, and, in every case, his attorney, if any, and presented to the court. The court shall require the disclosure of the agreement in open court or, upon a showing of good cause, in camera, at the time the plea is offered. If the agreement is of the type specified in subdivision (c) (1) (A) or (C), the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider a presentence report. If the agreement is of the type specified in subdivision (c) (1) (B), the court shall advise the defendant that, if the court does not accept the recommendation or request, the defendant nevertheless has no right to withdraw his plea, unless the Commonwealth fails to perform its part of the agreement. In that event, the defendant shall have the right to withdraw his plea.
(3) If the court accepts the plea agreement, the court shall inform the defendant that it will embody in its judgment and sentence the disposition provided for in the agreement.
(4) If the agreement is of the type specified in subdivision (c) (1) (A) or (C) and if the court rejects the plea agreement, the court shall inform the parties of this fact, and advise the defendant personally in open court or, on a showing of good cause, in camera, that the court will not accept the plea agreement. Thereupon, neither party shall be bound by the plea agreement. The defendant shall have the right to withdraw his plea of guilty or plea of nolo contendere and the court shall advise the defendant that, if he does not withdraw his plea, the disposition of the case may be less favorable to him than that contemplated by the plea agreement; and the court shall further advise the defendant that, if he chooses to withdraw his plea of guilty or of nolo contendere, his case will be heard by another judge, unless the parties agree otherwise.
(5) Except as otherwise provided by law, evidence of a plea of guilty later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged, or any other crime, or of statements made in connection with and relevant to any of the foregoing pleas or offers, is not admissible in the case-in-chief in any civil or criminal proceeding against the person who made the plea or offer. But evidence of a statement made in connection with and relevant to a plea of guilty, later withdrawn, a plea of nolo contendere, or any offer to plead guilty or nolo contendere to the crime charged or to any other crime, is admissible in any criminal proceeding for perjury or false statement, if the statement was made by the defendant under oath and on the record. In the event that a plea of guilty or a plea of nolo contendere is withdrawn in accordance with this Rule , the judge having received the plea shall take no further part in the trial of the case, unless the parties agree otherwise.
Rule 3A:9 Pleadings and Motions for Trial; Defenses and Objections.
(a) Pleadings and Motions. Pleadings in a criminal proceeding shall be the indictment, information, warrant or summons on which the accused is to be tried and the plea of not guilty, guilty or nolo contendere. Defenses and objections made before trial that heretofore could have been made by other pleas or by demurrers and motions to quash shall be made only by motion to dismiss or to grant appropriate relief, as provided in these rule.
(1) Defenses and Objections That Must Be Raised Before Trial. Defenses and objections based on defects in the institution of the prosecution or in the written charge upon which the accused is to be tried, other than that it fails to show jurisdiction in the court or to charge an offense, must be raised by motion made within the time prescribed by paragraph (c) of this Rule . The motion shall include all such defenses and objections then available to the accused. Failure to present any such defense or objection as herein provided shall constitute a waiver thereof. Lack of jurisdiction or the failure of the written charge upon which the accused is to be tried to state an offense shall be noticed by the court at any time during the pendency of the proceeding.
(2) Defenses and Objections That May Be Raised Before Trial. In addition to the defenses and objections specified in subparagraph (b) (1) of this Rule , any defense or objection that is capable of determination without the trial of the general issue may be raised by motion before trial. Failure to present any such defense or objection before the jury returns a verdict or the court finds the defendant guilty shall constitute a waiver thereof.
(3) Form of Motion. Any motion made before trial shall be in writing if made in a circuit court, unless the court for good cause shown permits an oral motion. A motion shall state with particularity the grounds or grounds on which it is based.
(4) Hearing on Motion. A motion before trial raising defenses or objections shall be determined before the trial unless the court orders that it be deferred for determination at the trial of the general issue. An issue of fact shall be heard and determined by the court, unless a jury trial is required by constitution or statute.
(5) Effect of Determination. If a motion is determined adversely to the accused, his plea shall stand or he may plead over or, if the accused has not previously pleaded, he shall be permitted to plead. The motion need not be renewed if the accused properly saves the point for the purpose of appeal when the court first determines the motion.
(c) Time of Filing Notice or Making Motion. A motion referred to in subparagraph (b) (1) shall be filed or made before a plea is entered and, in a circuit court, at least 7 days before the day fixed for trial, and a copy of such motion shall, at the time of filing, be mailed to the judge of the circuit court who will hear the case, if known.
(d) Relief From Waiver. For good cause shown the court may grant relief from any waiver provided for in this Rule .
Rule 3A:10 Trial Together of More Than One Accused or More Than One Offense.
(a) More Than One Accused - Joinder of Defendants. On motion of the Commonwealth, for good cause shown, the court, in its discretion, may order persons charged with participating in contemporaneous and related acts or occurrences or in a series of acts or occurrences constituting an offense or offenses to be tried jointly unless such joint trial would constitute prejudice to a defendant.
(b) More Than One Accused - Severance of Defendants. If the court finds that a joint trial would constitute prejudice to a defendant, the court shall order severance as to that defendant or provide such other relief as justice requires.
(c) An Accused Charged With More Than One Offense. The court may direct that an accused be tried at one time for all offenses then pending against him, if justice does not require separate trials and (i) the offenses meet the requirements of Rule 3A:6 (b) or (ii) the accused and the Commonwealth's attorney consent thereto.
Rule 3A:11 Discovery and Inspection.
(a) Application of Rule . This Rule applies only to prosecution for a felony in a circuit court.
(1) Upon written motion of an accused a court shall order the Commonwealth's attorney to permit the accused to inspect and copy or photograph any relevant (i) written or recorded statements or confessions made by the accused, or copies thereof, or the substance of any oral statements or confessions made by the accused to any law enforcement officer, the existence of which is known to the attorney for the Commonwealth, and (ii) written reports of autopsies, ballistic tests, fingerprint analyses, handwriting analyses, blood, urine and breath tests, other scientific reports, and written reports of a physical or mental examination of the accused or the alleged victim made in connection with the particular case, or copies thereof, that are known by the Commonwealth's attorney to be within the possession, custody or control of the Commonwealth.
(2) Upon written motion of an accused a court shall order the Commonwealth's attorney to permit the accused to inspect and copy or photograph designated books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, that are within the possession, custody, or control of the Commonwealth, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. This subparagraph does not authorize the discovery or inspection of statements made by Commonwealth witnesses or prospective Commonwealth witnesses to agents of the Commonwealth or of reports, memoranda or other internal Commonwealth documents made by agents in connection with the investigation or prosecution of the case, except as provided in clause (ii) of subparagraph (b)(1) of this Rule .
(c) Discovery by the Commonwealth. If the court grants relief sought by the accused under clause (ii) of subparagraph (b) (1) or under subparagraph (b) (2) of this Rule , it shall, upon motion of the Commonwealth, condition its order by requiring that:
(1) The accused shall permit the Commonwealth within a reasonable time but not less than ten (10) days before trial or sentencing, as the case may be, to inspect, copy or photograph any written reports of autopsy examinations, ballistic tests, fingerprint, blood, urine and breath analyses, and other scientific tests that may be within the accused's possession, custody or control and which the defense intends to proffer or introduce into evidence at trial or sentencing.
(2) The accused disclose whether he intends to introduce evidence to establish an alibi and, if so, that the accused disclose the place at which he claims to have been at the time of the commission of the alleged offense.
(3) If the accused intends to rely upon the defense of insanity or feeble-mindedness, the accused shall permit the Commonwealth to inspect, copy or photograph any written reports of physical or mental examination of the accused made in connection with the particular case, provided, however, that no statement made by the accused in the course of an examination provided for by this Rule shall be used by the Commonwealth in its case-in-chief, whether the examination shall be with or without the consent of the accused.
(d) Time of Motion. A motion by the accused under this Rule must be made at least 10 days before the day fixed for trial. The motion shall include all relief sought under this Rule . A subsequent motion may be made only upon a showing of cause why such motion would be in the interest of justice.
(e) Time, Place and Manner of Discovery and Inspection. An order granting relief under this Rule shall specify the time, place and manner of making the discovery and inspection permitted and may prescribe such terms and conditions as are just.
(f) Protective Order. Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted or deferred, or make such other order as is appropriate. Upon motion by the Commonwealth the court may permit the Commonwealth to make such showing, in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court denies discovery or inspection following a showing in camera, the entire text of the Commonwealth's statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the accused.
(g) Continuing Duty to Disclose; Failure to Comply. If, after disposition of a motion filed under this Rule , and before or during trial, counsel or a party discovers additional material previously requested or falling within the scope of an order previously entered, that is subject to discovery or inspection under this Rule , he shall promptly notify the other party or his counsel or the court of the existence of the additional material. If at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with this Rule or with an order issued pursuant to this Rule , the court shall order such party to permit the discovery or inspection of materials not previously disclosed, and may grant such other relief as it may deem appropriate.
Rule 3A:12 Subpoena.
(a) For Attendance of Witnesses. A subpoena for the attendance of a witness to testify before a court not of record shall be issued by the judge, clerk, magistrate, or Commonwealth's attorney. A subpoena for the attendance of a witness to testify before a circuit court or a grand jury shall be issued by the clerk or Commonwealth's attorney. The subpoena shall (i) be directed to an appropriate officer or officers, (ii) name the witness to be summoned, (iii) state the name of the court and the title, if any, of the proceeding, (iv) command the officer to summon the witness to appear at the time and place specified in the subpoena for the purpose of giving testimony, and (v) state on whose application the subpoena was issued.
No subpoena or subpoena duces tecum shall be issued in any criminal case or proceeding, including any proceeding before any grand jury, which subpoena or subpoena duces tecum is (i) directed to a member of the bar of this Commonwealth or any other jurisdiction, and (ii) compels production or testimony concerning any present or former client of the member of the bar, unless the subpoena request has been approved in all specifics, in advance, by a judge of the circuit court wherein the subpoena is requested after reasonable notice to the attorney who is the subject of the proposed subpoena. The proceedings for approval may be conducted in camera, in the judge's discretion, and the judge may seal such proceedings. Such subpoena request shall be made by the Commonwealth's attorney for the jurisdiction involved, either on motion of the Commonwealth's attorney or upon request to the Commonwealth's attorney by the foreman of any grand jury.
(b) For Production of Documentary Evidence and of Objects Before a Circuit Court. Upon notice to the adverse party and on affidavit by the party applying for the subpoena that the requested writings or objects are material to the proceedings and are in the possession of a person not a party to the action, the judge or the clerk may issue a subpoena duces tecum for the production of writings or objects described in the subpoena. Such subpoena shall command either (1) that the individual to whom it is addressed shall appear in person and with the items described either before the court or the clerk or (2) that such individual shall deliver the items described to the clerk. The subpoena may direct that the writing or object be produced at a time before the trial or before the time when it is to be offered in evidence.
(c) Service and Return. A subpoena may be executed anywhere in the State by an officer authorized by law to execute the subpoena in the place where it is executed. The officer executing a subpoena shall make return thereof to the court named in the subpoena.
(d) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court to which the subpoena is returnable.
(e) Recognizance of a Witness. If it appears that the testimony of a person is material in any criminal proceeding, a judicial officer may require him to give a recognizance for his appearance.
Rule 3A:13 Trial by Jury or by Court.
(a) Right to Jury; Duty of Court in Nonjury Trial. The accused is entitled to a trial by jury only in a circuit court on a plea of not guilty.
(b) Waiver of Jury in Circuit Court. If an accused who has pleaded not guilty in a circuit court consents to trial without a jury, the court may, with the concurrence of the Commonwealth's attorney, try the case without a jury. The court shall determine before trial that the accused's consent was voluntarily and intelligently given, and his consent and the concurrence of the court and the Commonwealth's attorney shall be entered of record.
Rule 3A:14 Trial Jurors.
(a) Examination. After the prospective jurors are sworn on the voir dire, the court shall question them individually or collectively to determine whether anyone:
(1) Is related by blood or marriage to the accused or to a person against whom the alleged offense was committed;
(2) Is an officer, director, agent or employee of the accused;
(3) Has any interest in the trial or the outcome of the case;
(4) Has acquired any information about the alleged offense or the accused from the news media or other sources and, if so, whether such information would affect his impartiality in the case;
(5) Has expressed or formed any opinion as to the guilt or innocence of the accused;
(6) Has a bias or prejudice against the Commonwealth or the accused; or
(7) Has any reason to believe he might not give a fair and impartial trial to the Commonwealth and the accused based solely on the law and the evidence.
Thereafter, the court, and counsel as of right, may examine on oath any prospective juror and ask any question relevant to his qualifications as an impartial juror. A party objecting to a juror may introduce competent evidence in support of the objection.
(b) Challenge for Cause. The court, on its own motion or following a challenge for cause, may excuse a prospective juror if it appears he is not qualified, and another shall be drawn or called and placed in his stead for the trial of that case.
Rule 3A:15 Motion to Strike or to Set Aside Verdict; Judgment of Acquittal or New Trial.
(a) Motion to Strike Evidence. After the Commonwealth has rested its case or at the conclusion of all the evidence, the court on motion of the accused may strike the Commonwealth's evidence if the evidence is insufficient as a matter of law to sustain a conviction. If the court overrule a motion to strike the evidence and there is a hung jury, the accused may renew the motion within the time specified in Rule 1:11 and the court may take the action authorized by the Rule .
(b) Motion to Set Aside Verdict. If the jury returns a verdict of guilty, the court may, on motion of the accused made not later than 21 days after entry of a final order, set aside the verdict for error committed during the trial or if the evidence is insufficient as a matter of law to sustain a conviction.
(c) Judgment of Acquittal or New Trial. The court shall enter a judgment of acquittal if it strikes the evidence or sets aside the verdict because the evidence is insufficient as a matter of law to sustain a conviction. The court shall grant a new trial if it sets aside the verdict for any other reason.
Rule 3A:16 Instructions.
(a) Giving of Instructions. In a felony case, the instructions shall be reduced to writing. In all cases the court shall instruct the jury before arguments of counsel to the jury.
(b) Proposed Instructions. If directed by the court the parties shall submit proposed instructions to the court at such reasonable time before or during the trial as the court may specify and, whether or not proposed instructions have been submitted earlier, the parties may submit proposed instructions at the conclusion of all the evidence.
(c) Objections. Before instructing the jury, the court shall advise counsel of the instructions to be given and shall give counsel the opportunity to make objections thereto. Objections shall be made out of the presence of the jury, and before the court instructs the jury unless the court grants leave to make objections at a later time.
(d) Alternative Forms of Verdicts; Separate Verdicts. The court may submit alternate forms of verdicts to the jury. The jury shall be instructed to return a separate verdict on each count of an indictment or presentment.
Rule 3A:17 Jury Verdicts.
(a) Return. In all criminal prosecutions, the verdict shall be unanimous, in writing and signed by the foreman, and returned by the jury in open court.
(b) Several Accused. If there are two or more accused, the jury may return a verdict as to any of them as to whom it can agree.
(c) Conviction of Lesser Offense. The accused may be found not guilty of an offense charged but guilty of any offense, or of an attempt to commit any offense, that is substantially charged or necessarily included in the charge against the accused. When the offense charged is a felony, the accused may be found not guilty thereof, but guilty of being an accessory after the fact to that felony.
(d) Poll of Jury. When a verdict is returned, the jury shall be polled individually at the request of any party or upon the court's own motion. If upon the poll, all jurors do not agree, the jury may be directed to retire for further deliberations or may be discharged.
Rule 3A:17.1 Proceedings in Bifurcated Jury Trials of Non-Capital Felonies.
(a) Application. This Rule applies in cases of trial by jury upon a finding that the defendant is guilty of a non-capital felony.
(b) Bifurcated Proceedings. In any jury trial in which the jury returns a verdict of guilty to one or more non-capital felony offenses, a separate proceeding limited to the ascertainment of punishment shall be held as soon as practicable before the same jury.
(c) Instruction at Guilt Phase. At the conclusion of all of the evidence in the guilt phase of the trial, the court shall instruct the jury as to punishment with respect to any misdemeanor being tried in the same proceeding or any lesser-included misdemeanor of any charged felony offense which may be properly considered by the jury. The jury shall not be instructed until the punishment phase with reference to the punishment for any charged or lesser-included felony offense.
(d) Opening Statements at Penalty Phase. Both the Commonwealth and the defense shall be entitled if they choose, to make an opening statement prior to the presentation of any evidence to the jury relevant to the penalty to be imposed. The Commonwealth shall give its statement first.
(e) Presentation of Evidence at Penalty Phase. If the jury convicts the defendant of one or more non-capital felony offenses, the penalty phase shall proceed in the following order:
(1) The Commonwealth may introduce certified, attested, or exemplified copies of the accused's record of conviction(s) as provided by law. As a prerequisite to the introduction of such records of conviction, the Commonwealth shall have advised the defense, in accord with the requirements of law, of its intention to introduce such evidence.
(2) The defense may introduce relevant admissible evidence related to punishment. The defense shall have the opportunity to present such evidence irrespective of whether or not the Commonwealth presents evidence of previous criminal history.
(3) The Commonwealth may introduce relevant admissible evidence related to punishment in rebuttal.
(4) The defense may introduce relevant, admissible evidence related to punishment in rebuttal.
(f) Closing Arguments at Penalty Phase. Both the Commonwealth and defense shall be entitled to make a closing argument on the subject of punishment if they elect to do so. The Commonwealth shall be given the opportunity to argue first, followed by the defense. Rebuttal argument may be made by the Commonwealth.
(g) Change of Plea. The accused may enter a plea of guilty to the whole of the indictment at any time until the jury returns a verdict on the issue of the defendant's guilt or innocence.
(h) Mistrial Upon a Non-Unanimous Jury at the Penalty Phase. Should the jury fail to reach unanimous agreement as to punishment on any charge for which it returned a verdict of guilty, a mistrial shall be declared as to that count and that charge shall be retried as to guilt or innocence as to the offense for which a verdict of guilty was returned. If the original jury returned a guilty verdict to a lesser-included felony, but failed to be unanimous in determining punishment, retrial shall be upon the lesser-included felony. If the defendant, the attorney for the Commonwealth and the court agree, rather than declare a mistrial, the court shall fix punishment in the manner provided in Section 19.2-257, for the offense upon which the jury unanimously returned a verdict of guilty.
Rule 3A:18 Death Penalty.
The trial of capital cases shall proceed in accordance with the provisions of Article 4.1 of Chapter 15 of Title 19.2 and, except to the extent conflicting therewith, the provisions of this Part Three A shall be applicable thereto.
Except for good cause shown, the separate proceeding provided for in Section 19.2-264.3 C shall commence as if it were a continuation of the original trial and continue from day to day until concluded.
Rule 3A:19 Appeals.
(a) Appeal From Conviction in a Circuit Court. See Part Five of these rule.
(b) Appeal From Conviction in a Juvenile and Domestic Relations District Court. The accused or his counsel shall advise the judge or clerk of the juvenile and domestic relations district court, within 10 days after conviction, of his intention to appeal. The appeal shall be noted on the warrant or summons and, if the accused does not withdraw his appeal before the expiration of the 10-day period, the papers shall be filed with the circuit court at the end of such period. Paying a fine or beginning to serve a sentence does not impair the right to appeal.
Rule 3A:20 Time.
(a) Extension. When under this Part Three A an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period extended if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period, permit the act to be done if the failure to act was the result of excusable neglect; but the court may not extend the time for taking any action under rule 3A:15 and 19; except to the extent and under the conditions stated in those rule.
(b) Unaffected by Expiration of Term. The period of time specified in this Part Three A for taking any action is not affected or limited by the expiration of a term of court.
Rule 3A:21 Service and Filing of Papers.
(a) Copies of Written Motions to Be Furnished. All written motions and notices not required to be served shall be served otherwise on each counsel of record by delivering or mailing a copy to him on or before the day of filing. At the foot of such motions and notices shall be appended either acceptance of service or a certificate of counsel that copies were served as this Rule requires, showing the date of delivery or mailing.
(b) Filing. Papers required to be served shall be filed with the clerk.
Rule 3A:22 Forms.
Forms 1 through 9 in the Appendix of Forms are illustrative and not mandatory; however, Form 10 requires substantial compliance.
Rule 3A:23 Effective Date.
The rule set forth in this Part Three A shall be effective July 1, 1984. They shall govern all out-of-court criminal proceedings on or after that day, all criminal proceedings brought before courts on or after that day and, except to the extent that in the opinion of the court their application would not be feasible or would work injustice, all criminal proceedings pending before courts on that day.
Rule 3A:f-1 Appendix of Forms.
Rule 3A:f-1.1 Criminal Complaint (Rule 3A:3).
REFER TO THE BOOK FOR THE PROPER TABLE
Rule 3A:f-2 Statement of Witne