Brave New World: Blogging The Revisions to Virginia's Appellate Rules (Rule 5:1)
A little while ago, I promised to share my thoughts on the revised appellate rules that take effect on July 1. (Okay, so it was a more than month ago. Things have been busy.)
Let's start at the beginning. Rule 5:1 has been amended to include two new substantive provisions:
- Certificate of Service. Rule 5:1(d) provides that, unless service or notice is otherwise specified in a Rule, any paper filed must include a certificate of service showing that the document has been transmitted to all counsel, and noting the date and manner of transmittal. If a word count is used, the certificate must also state the number of words.
- Citing Unpublished Opinions. Rule 5:1(f) specifies that lawyers may cite unpublished judicial dispositions, but only as a persuasive authority. If the document cited is not available in a publicly accessible electronic database, the party must file and serve the document along with the brief or motion in which it is cited.
These seem like perfectly reasonable--and helpful--changes. On the certificate of service point, there are few things more annoying than being retained as appellate counsel, and immediately having to call clerks, printers, and/or opposing counsel to reverse engineer a deadline because someone has certified service without noting the method.
As for citing unpublished opinions, that's fine, as far as it goes. I doubt that the Court will give too much weight to an unpublished opinion (otherwise, it would be published), but I can also imagine situations where it might be helpful to cite one. I am a little curious about what qualifies as a "publicly accessible electronic database." Fastcase is available to every member of the bar; does that count? Some law libraries have public access to Lexis or Westlaw, but I doubt that brings them within the scope of the rule. Absent further guidance, I suspect that you will have to err on the side of attaching opinions.
