Avoiding the Verdict Clause Samples

Avoiding the Verdict. If the plaintiff takes a nonsuit or a mistrial is granted before the verdict, the court is unlikely to enforce the high-low agreement unless it includes terms outlining a resolution in the event of a nonsuit, mistrial or hung jury. If the parties are intent on ending litigation in the event of a hung jury, a resolution is relatively straightforward. The parties typically pick a compromise number to be awarded if the jury cannot agree on a verdict. Virginia Code Section 8.01-380 gives a plaintiff the right to nonsuit a case at any time before it is submitted to the jury. The only reason a plaintiff would nonsuit with a high-low agreement in place is to avoid the possibility that the plaintiff will end up with the low. In essence, it is an attempt to avoid the agreement. For this reason, plaintiffs should not be allowed to escape the agreement by nonsuiting the case. However, Virginia courts are loathe to deny a plaintiff the statutory right to a nonsuit, and courts may interpret the statute as giving a plaintiff the absolute right regardless of whether a high-low is in place. To make certain that the litigation ends in the event of a nonsuit, the terms of the high-low should specifically state that, should the plaintiff move for a nonsuit, the low will be awarded. Nothing in the Code suggests that such an agreement would not be enforced. Including terms in a high-low that ends litigation in the event of a mistrial (other than a hung jury) is much more difficult. Unlike a hung jury or nonsuit, mistrials occur when something goes wrong, and the judge suspects that the verdict will be tainted. Moreover, mistrials may occur through no fault of the litigants, i.e., the result of improper third party witness testimony or juror misconduct. Accordingly, to the extent that the parties decide to address the issue in the high-low, the terms usually provide that the agreement has no effect in the event of a mistrial.
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Related to Avoiding the Verdict

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