General Counsel, P.C. (“GCPC”) attorneys practice in three jurisdictions, collectively known as the “DMV” – the District of Columbia, Maryland and Virginia. While similarities exist among the venues, there are distinct differences that might impact where you or your company may prefer to engage in litigation.
While GCPC has a strong litigation practice, it also maintains a strong business law practice. When drafting, reviewing or negotiating contracts, one consideration is where litigation should take place in the event of a dispute. “Forum selection” and “choice of law” clauses can (and should) be built into any contract. “Forum selection” means in which jurisdiction a suit must be brought – for example, DC, Maryland or Virginia. Other jurisdictions are available, but this article focuses on the DMV. Choice of law clauses pre-select which jurisdiction’s laws will be applied to the dispute. Generally, there should be a nexus/connection between choice of law and the location of the parties and/or business activities to any contact. There are state and federal court systems, but this article focuses on state courts as federal courts have limited jurisdiction when it comes to routine business disputes.
In addition to state and federal courts, parties can also agree to go to private, binding arbitration. Parameters, such as who will serve as arbitrator(s), what law will apply, and who will pay for the arbitration are routinely part and parcel of any agreement to arbitrate. Arbitration is a private trial with the parties agreeing to be bound by the arbitrator’s decision – outside of any court system. A full discussion of the pros/cons of arbitration is outside the scope of this article.
Why would a business prefer to sue or be sued in one jurisdiction versus another?
While there are a multitude of nuances (including where your attorney has litigated more often and, therefore, knows judges and unwritten court house rules or procedures) some generalities are as follows:
The District of Columbia: Superior Court has jurisdiction beginning at disputes involving $10,000.00 or more. There is no General District Court like in Maryland and Virginia. The Superior Court is a very busy courthouse with judges known to carry several hundred cases on their dockets. The Rules of Civil Procedure track the federal rules, and there is, theoretically, a one judge per case tracking system. Cases are generally supposed to be tried within one year of filing, and remain assigned to one judge who will know the case from start to finish. Overcrowded dockets and the annual assignment changes made each January 1 can hinder these goals. There is an appeal “of right” to the D.C. Court of Appeals in every Superior Court case. Trials can be either to the bench or a jury. District of Columbia law, grossly generalized, is not applied as strictly as it is, generally viewed, in Virginia, and there is much room for liberal interpretation. There could also be “soft” reasons for wanting to keep litigation in a specific jurisdiction, such as the business being well known and having strong ties to that jurisdiction.
Maryland: Maryland has a District Court that handles civil cases up to $30,000.00. No juries are available in this court unless one is demanded in a case involving more than $15,000.00. Trials usually happen the day the parties appear in court, so the resolution of disputes in Maryland District Court is usually very efficient. In the Circuit Court, juries may be selected, summary judgment motions may be filed and equitable relief such as Declaratory Relief, Temporary Restraining Orders and Injunctions may be sought. No equitable relief is available in the District Court. Maryland Rules of Civil Procedure do not track the federal rules and have some unusual quirks. The courts are divided up into counties. Many counties attempt to adhere to strict “try by” deadlines wherein trials are expected to take place within one year, or so, of the filing date. County courts can have distinct “personalities.” By way of example, Montgomery County is generally perceived as “defendant friendly” with more conservative verdicts, and Prince George’s County is often viewed as more plaintiff friendly, willing to award larger sums. Of course, these are generalizations. Maryland allows an appeal “of right” to the intermediate Court of Special Appeals. Getting an appeal heard by the highest court, the Court of Appeals, requires a petition and grant of that petition by the Court of Appeals.
Virginia: Much like Maryland, Virginia procedural rules do not track the federal rules. Often, they are viewed as “unique” and trace their roots back to the origins of the formation of the Commonwealth. Virginia court houses are known to operate with a myriad of unwritten rules, known primarily to the clerks and lawyers who practice very regularly in any given county. Virginia does have a General District Court system that allows non-jury trials involving amounts up to $25,000.00. Much like the Maryland system, this program can make for an efficient resolution of the dispute. As an overall general premise, Virginia courts are viewed as applying law in a strict, “black letter” fashion – at least more so than the District of Columbia or Maryland. Little wiggle room is afforded by judges for “interpretation.” Civil appeals are by petition to the Supreme Court of Virginia and are not a matter of right. There are appeals as of right, de novo, from General District Courts to Circuit Courts in Virginia.
The foregoing discussion in no way takes into account all the complexities of each jurisdiction. This article is intended as a “thumb nail sketch” of some considerations for business people when negotiating contracts. Counsel is recommended for contract drafting and review. Hopefully, this article sheds some light on the availability of several options to consider when planning for the potentiality that a dispute may arise.
If you, or your company, is planning or facing litigation in DC, MD or VA, consider contacting General Counsel, P.C. Our litigation attorneys have expertise litigating in each of these jurisdictions and can help guide and defend you.