Premises Tip: Federal Court is Not All Bad
M. Scott Bucci—August 2, 2018
Many trial lawyers want to avoid federal court at all costs. While it is true that there are many additional rules and deadlines that have to be dealt with, and a greater chance that summary judgment would be granted in federal court than in state court, there are also several factors that are actually favorable to the plaintiff who is removed to federal court.
For the Eastern District of Virginia, the speed at which cases proceed is a tremendous advantage to the plaintiff, especially in complicated damages cases. If you believe you have a good case on liability and can have all of your damages witnesses lined up prior to filing suit, federal court could be a better option than state court. Push for an early trial date when the case is removed. The defense will have only months before their expert deadline to conduct written discovery and depositions, subpoena providers, retain experts and have them give preliminary opinions, arrange for defense medical exams, and obtain a written report from the expert. Add that it is likely that the defense counsel for a big box store probably has several pending federal court cases with similar tight deadlines, and there is ample opportunity for the defense not to fully prepare their damages defense.
The expert disclosure requirements for defendants are also burdensome. While Rule 4:1 requires a party to only state “the substance of the facts and opinions” of the expert, Federal Rule 26 requires a signed statement that lists all opinions and all facts or data considered by the retained expert. In general, if it’s not in the expert’s report, it’s not coming into evidence. On the other hand, the advisory committee notes to Rule 26 specifically state that a treating physician does not have to provide a written report. Rather, a treating physician expert disclosure must list the subject matter of the treater’s testimony, as well as “a summary of the facts and opinions” of the treater – similar to the requirement in state court.
Many federal courts also require settlement conferences. In my experience, magistrate judges are very prepared and motivated to get the case settled at a settlement conference. Further, federal courts require that the defendant bring an adjuster to the conference in person and that that person have full authority to settle the case. Lastly, federal courts are usually very persuasive in convincing non-parties who have a stake in the outcome to participate. For example, if there is a dispute over coverage and an insurance company is not involved in the federal action, federal judges will gently (and sometimes not so gently) suggest that the company attend the settlement conference and be prepared to negotiate in good faith.
Lastly, a key issue in many premises cases is spoliation of evidence, and in particular preservation of surveillance video. Spoliation may be all but a dead issue in state court in the wake of the Virginia Supreme Court’s decision in Emerald Point v. Hawkins, 294 Va. 544 (2017), but it still appears to be alive and well in state court. For example, adjusters may have a store pull the surveillance video of a slip and fall accident, but only the moments before the fall is preserved, not the crucial footage that shows how long the spill was present. I have been allowed to depose out of state adjusters to establish that they knew that the length of time a spill was present was a key issue in the case, and nevertheless failed to preserve surveillance video that shows how long the spill was present, to support a spoliation inference.
The number of rules, deadlines, and threat of summary judgment in federal court can be daunting, but there are a number of advantages to being in federal court for the trial lawyer.