Weisberg Law Blog

The Non-Suit

This involves civil litigation only. The idea is that of the voluntary non-suit. Its basis is Section 8.01-380 of the Code of Virginia. It is a powerful tool available to the plaintiff in a civil law suit, especially in personal injury cases. The Section allows a plaintiff to dismiss his claim, with the right to bring it back, at any time before a final decision is made. Thus, if the trial is not going well, a plaintiff can tell the Judge that he wishes to take a non-suit. At that point the case ends. It can be brought back again, starting all over. It is kind of a legal "mulligan" (using a golf term).
There are some restrictions and note worthy things about this creature. The first non-suit is taken as a matter of right. This means that the presiding Judge must grant a request for a non-suit; no objection to the taking of the first non-suit can stop it. Second non-suits are only given at the discretion of the Judge. After taking the non-suit, the action must be re-filed within 6 months. The re-filing must be done in the same Court.
It is as if two football teams are getting ready to play, when just before kickoff, the home team is allowed to say "Nah, we'll do this another day." Wow! What an advantage. That is why the smart lawyer uses it only when necessary. It should not be wasted for trivial reasons; you may find out later that it's not available when you really need.
Over the years, this law has come under fire as insurance companies have tried to get the law changed. So far they have not been able to change it. In criminal law there is a similar concept whereby the Commonwealth of Virginia can ask for a nolle prosse, but it is different and the subject of a future blog by me.

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