The Virginia Business Litigation Blog
Due to rules governing subject-matter jurisdiction, plaintiffs often don’t have a choice between filing their lawsuit in Virginia state court or federal court. Federal courts possess exclusive jurisdiction over certain types of claims and often lack jurisdiction to hear cases involving claims arising under state law. In many situations, though, plaintiffs have the option to pursue their claims in either state court or federal court. Neither forum is necessarily more advantageous than the other. To help prospective litigants weigh the pros and cons of state court vs. federal court, I’ve summarized some of the key differences below.
1. For fast-paced litigation, choose federal court.
The Eastern District of Virginia is known around the country as the “Rocket Docket” due to how quickly the proceedings move. The average Rocket Docket case is scheduled for trial just 8-10 months after the filing of the complaint. By comparison, trials in Fairfax Circuit Court typically are scheduled close to a year after filing. Litigants in federal court may only have 90 days in which to complete discovery, something unheard of in state court. Continuances are rarely granted in either court, but are even more difficult to get in federal court, where you should just assume the trial date is carved in stone. Basically, if you file your lawsuit in federal court, at least up here in Northern Virginia, expect a whirlwind of litigation from beginning to end. This may be overwhelming to some, but desirable to others.
2. Federal court proceedings tend to cost more in legal fees.
Largely as a result of how quickly things move in federal court, you can expect your attorneys to be extremely busy as they struggle to stay on top of things. If you’re paying your lawyers by the hour, this will translate to legal bills that are usually much higher than they would be had you filed in state court. In the long run, for cases that are actually tried, these costs can balance out. It’s just that in federal court, litigation tasks are more “front loaded,” so there is more that must be done in a shorter period of time. Also, federal judges generally expect more from counsel, including thorough preparation and exhaustive briefing. The extra effort results in a higher legal bill. Litigants on a tight budget should choose state court.
3. State court judges typically have more familiarity with state-law claims.
When suing someone for a tort arising under state law (e.g., defamation, emotional distress, fraud, etc.), you might consider that Virginia state-court judges will generally be more familiar with Virginia Supreme Court precedent on these issues than federal-court judges. Judges in federal courts spend much of their time studying and ruling on issues involving federal questions like international trade, government contracts, patents, trademarks, and veterans’ benefits. They sometimes deal with matters of state law as well, but not as often as state-court judges who deal with state-law matters every day. Conversely, federal judges will usually be more familiar with claims brought pursuant to federal statutes, like the Lanham Act.
4. State court cases are more likely to go to trial.
Federal courts sitting in Virginia are all about efficiency: if it becomes apparent that there is no genuine dispute regarding any material fact and that the law clearly favors one of the parties, why bother setting the matter for trial? Federal judges generally have the mindset that cases should be tried only when there’s a factual dispute that must be resolved through a complete presentation of evidence to a factfinder. If federal judges can readily determine which side should win the case based on a review of the parties’ written submissions, they will simply grant summary judgment for that party and the case will end early. In state court, on the other hand, there is more of a feeling that every plaintiff is entitled to his or her “day in court” and that it would be unfair to short-circuit the litigation process by taking the matter from the jury. Consequently, it’s much more difficult to obtain summary judgment in state court than it is in federal court. One reason for this is that it’s more difficult in state court to use affidavits and deposition testimony in support of (or in opposition to) one’s motion for summary judgment. In state court, you can only use such materials when the only parties to the action are business entities and where the case involves at least $50,000. (See Va. Code § 8.01-420(C)). In federal court, there is no such restriction and judges routinely consider deposition testimony as well as sworn affidavits and declarations when considering motions for summary judgment.
5. Federal judges write detailed written opinions.
Some litigants like to know the reasons for the court’s rulings. Especially for those on the losing side of a case, it can be frustrating to be told the case is over–and that you lost–without a full understanding of how and why that happened. In Virginia state court, it’s not uncommon to try a case and then be told by the judge merely, “The court finds in favor of the Defendant,” without elaboration or explanation. Some judges will even become annoyed if pressed for an explanation. In federal court, by contrast, you can expect written opinions containing long, well-reasoned, and carefully considered analysis. Win or lose, you’ll know why the judge ruled as he or she did.
6. In state court, it’s easier to predict the makeup of the jury.
To the extent generalizations can be made about people who live in a certain area, those generalizations will tend to be more accurate when you’re trying to predict how a jury will view your case in state court as opposed to federal court. This is simply because the jury pool is much smaller in state court, where juries are drawn only from citizens of the city or county in which the courthouse is located. Federal district courts, on the other hand, select citizens’ names from lists of registered voters residing anywhere within the court’s jurisdiction, which is typically a much larger area. If you have a trial in the Eastern District of Virginia’s Alexandria Division, for example, your jury might consist of individuals drawn from the counties of Arlington, Fairfax, Fauquier, Loudoun, Prince William, and Stafford.
7. Federal proceedings tend to get more media exposure.
This isn’t always true, but it’s a lot easier for media organizations to track federal proceedings than state court proceedings. In federal court, virtually all filings are made electronically. An online service called the Public Access to Court Electronic Records (PACER) provides electronic public access to anyone with an account. Journalists have access to these accounts and can easily monitor case filings around the country. Although some state courts have similar electronic-filing systems, most Virginia state courts are not set up to allow journalists to review case filings from their home or office. Instead, anyone interested in reviewing a case file generally needs to travel to the courthouse to review the file in person. Therefore, if you’re trying to litigate a case as quietly as possible, you probably want to avoid federal court.
8. Federal courts have nationwide subpoena power.
The Federal Rules of Civil Procedure allow attorneys to issue subpoenas from any federal court for the district in which the subpoena is served and enforced. This means that in federal court, it’s fairly easy to serve subpoenas anywhere in the United States. Attorneys have no such luxury in state court. To obtain out-of-state discovery in a state-court proceeding, litigants need to follow a cumbersome process outlined in the Uniform Interstate Depositions and Discovery Act to obtain a subpoena from the court of the state in which the non-party resides or where the documents are located. Again, things move more quickly in federal court.
These are the main differences that I normally review with my clients when discussing forum selection and whether to remove a case to federal court. If any lawyers out there feel I’m omitting something important, please let me know!