My attorney wants to “non-suit” my Virginia car accident case. What does that even mean?
If you’ve been the victim of a car accident in Virginia, you generally have two years to pursue your personal injury claim[1]. Once your case is filed, several actions occur as your case makes its way through the court. These include but are not limited to serving your law suit on the defendant, obtaining a trial date, and engaging in discovery.
However, sometimes, your case doesn’t progress smoothly. Perhaps your injury turned more complicated than initially anticipated, your doctor is no longer able to testify at trial, or whatever the case may be. In those instances, your attorney may want to “nonsuit” your case. Here’s what that means.
Non-suits in Virginia.
Under Virginia Code Section 8.01-380 Virginia state law permits a plaintiff to non-suit to their case. This essentially means that plaintiffs are permitted to stop and re-start their claim if more time is needed.
Limitations to Virginia non-suits.
As you might imagine non-suiting your case isn’t an absolute right. There are certain aspects that you need to understand before you do so. Here are a few things to think about.
- You can only non-suit if no counterclaim (or cross claim or third party claim) has been filed. Such claims essentially mean that either someone has filed an additional lawsuit within your case, either against you, another defendant, or a party not currently in the case. You should talk with your attorney to determine if that’s occurred in your claim.
- Additionally, you only get one non-suit. In some instances, a court may permit additional non-suits, but it’s certainly not guaranteed and yet another issue to discuss with your attorney.
- The non-suit the timing of the nonsuit is important. While you have a lot of flexibility, you must non-suit before a motion to strike evidence has been sustained, or a case has been submitted to the judge or jury for decision.
- Lastly, the Virginia non-suit statute stands in Virginia state law. It’s not so clear that you can non-suit a claim if it’s in Federal Court. So speak with your attorney about that option before doing anything in federal court
What do you have to do after a nonsuit?
Keep in mind, if you and your attorney agree that taking a nonsuit is the smart thing to do for your case, you must re-file it within six months of the nonsuit, or you will lose your ability to further pursue your claim. This is a rule some often forget. So make sure to put it on your calendar.
