Explanations of Legal Terms and Procedures

• What is the Time Within Which to Appeal a Final Order?

               According to the “21-day rule” in Virginia, a judgment becomes final after 21 days unless another order entered during that time-period modifies, vacates or suspends the final judgment order. A “reservation” of jurisdiction does not extend the 21-day period.
  
  

• Depositions:

  Why do I need depositions?  Why can't these people just be subpoenaed for trial?
  
  Depositions are recorded testimony of parties and witnesses under oath, transcribed by a court reporter for use at trial.  Depositions cost about $3.00 a page plus attorney time.  They can be a critically important tool for preparing a case.

  They are used:

  • To learn facts before trial to help you prepare.  If you learn important facts at trial, it is often too late for them to be helpful (like the existence of documents or witnesses you would not otherwise have known about).
    
  • To lock in a version of testimony.  Once someone is committed under oath to a particular statement, there is less risk of his or her testimony changing later (or of recollection fading with time).
    
  • To protect the availability of testimony.  Witnesses sometimes die or disappear before trial.  If a witness is important to your case, you want to preserve their words.
    
  Note: In Virginia, deposition testimony cannot be used to obtain summary judgment.  
  
  

• Interrogatories:

  Why not just use interrogatories sent to each person? They are less costly.

  Interrogatories are written questions one party sends the other to learn about the facts supporting the opponent.  Interrogatories are indeed less costly than a deposition, but usually not as effective.  Attorneys prepare interrogatory answers.  They reflect hours of review and refinement.  They do not trap people, or probe more deeply to ferret out nascent recollection.  Depositions do.  The usual approach is to use interrogatories first, and then follow up with a deposition.
  
  

• Per Stirpes vs. Per Capita:

  What is the difference between per stirpes and per capita in a will?

   The terms per stirpes and per capita are Latin. They refer to alternative ways to distribute the share of one of your beneficiaries who dies before you.

   Per stirpes means “by right of representation.”  Assume one of your children pre-deceased you, you named the child as one of multiple beneficiaries, and a child survives your deceased child.  In this circumstance, your grandchild would take the share of their parent whom you named as a beneficiary and who failed to survive you.

   Per capita means that each named person who survives you and is named as a beneficiary gets a share, and each named beneficiary who predeceases you forfeits their share (instead of spreading it among their surviving children).  It’s the opposite of per stirpes. 

   Most people select per stirpes.  Otherwise, you are in effect punishing a grandchild for the death of their parent.
  
  

• Decree of Reference:

   A decree of reference is a court order.  When signed by a judge, it assigns a case to a lawyer appointed by the court as Commissioner in Chancery (CIC).  The CIC acts like a judge.  The CIC hears evidence and writes a report that is submitted to the court.  The court accepts the report unless it is challenged by one of the lawyers.  The court likes the CIC procedure because it reduces the amount of work done by judges.  Parties like the CIC procedure because hearings can be scheduled faster than with a judge.  The cost of the CIC for an uncontested divorce is $125.00, plus $100.00 for the court reporter who creates the transcript.  Other CIC proceedings are billed according to the CIC’s hourly rate.

   

  Look at a sample memo to the Court on an issue of law. Mr. Long occasionally prepares documents like this to make sure a judge is aware of appeals cases that may affect the decision.
  

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Olivier Denier Long, Esquire
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McLean VA 22120-3026
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