De Novo: A Virginia Appellate Law Blog : Virginia Appellate Lawyer & Attorney : James O'Keeffe : Gentry Locke Rakes & Moore Law Firm : VA Court of Appeals Commentary & Analysis

Rule 5:17, which governs petitions for appeal, includes a few important changes that practitioners should note.

First, Rule 5:17(c)(1) clarifies what you need to include in your assignments of error: Under a separate heading called "Assignments of Error," the petition must list, "clearly and concisely without extraneous argument" the specific errors in the rulings below upon which you will rely.

That's all well and good; appellants have long been required to "lay their finger" on the trial court's error, as it were.

But the new Rule requires even greater digital precision: "An exact reference to the page(s) of the transcript, written statement of facts, or the record where the alleged error has been preserved in the trial court . . . shall be included with each assignment of error." I suspect that they're not kidding. Rumor has long held that, when a petition arrives at the Court, it is assigned to a staff attorney who scours the record to confirm that assignments of error have been preserved. Imagine how much simpler it will be to police compliance with this Rule (and how much easier it will make life for the staff attorneys).

Next, as previously discussed, Rule 5:17(c)(3) deletes the requirement that citations to Virginia cases include a cite to the Southeastern Reporter, and Rule 5:17(f) gives petitioners the option of using a page count or a (materially shorter) word count.

In a heretofore under-discussed change, Rule 5:17(c)(5) requires references to the record in your statement of facts. Previously, the coordinate rule had required such references only "when there is any possibility that the appellee may question the statement." Got that? Statements of facts now need citations to the record. Period. No more "fudging" it. No more making stuff up.

Moving on, Rule 5:17(c)(6) requires that, for each assignment of error, the standard of review and the argument--including principles of law and authorities--shall be stated in one place and not scattered throughout the brief. The reference here to the standard of review is a new addition--but everyone reading this blog knows how important the standard of review is, right? (Don't make me cite Somerville again.)

Finally, Rule 5:17(h) provides guidance for Anders appeals. Anders is a pen-pal-for-life program that SCOTUS instituted to help criminal defense lawyers stay in touch with their angriest former clients. It also scares gutless appellate practitioners away from court-appointed work. For further guidance, see Rule 5:17(h).

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Two minor changes in the new appellate rules have been generating way too much discussion (and far too many calls to the clerk's office) here at the Firm on the Move (TM).

On the theory that you, dear readers, operate on the same plane of nerdliness that we inhabit, we now confront  two of the least pressing issues of our time: page limits and parallel citations.

Page Limits

The confusion about page limits stems from changes to Rules 5:17, 5:18, and 5:26. The old versions of these rules provided page limits for petitions and briefs. The new rules still limit the length of submissions, but state those limits alternately in the form of pages or words. For example, under Rule 5:17, a petition for appeal "shall not exceed 35 pages or 6,125 words."

See the problem? No? Look closer.

You can't tell whether the petition shall not exceed the greater of, or the lesser of, 35 pages or 6,125 words. The other page/word limits are similarly drafted.

(This is why people hate lawyers.)

Predictably, this sweeping change in the law has caused great anxiety among our brethren. Language has been parsed. Debates have been held. Calls  have been placed to sources in the know.  Listservs have been consulted.

And as a result, we are able to state with some conviction that:

1. We have it on pretty good authority that the Rules mean that briefs "shall not exceed the greater of" the stated page limit or word count.
2. Under no circumstances should you ever be approaching the page limit or word count anyway.

And if you thought that was silly . . .

Parallel Citations

. . . then there's the question of parallel citations. Sadly, we don't have a good answer for this one yet.

Here's the issue, such as it is. The old rules specified that citations to Virginia cases should cite to both the Virginia Reports and the Southeastern Reporter (at least in the table of citations). The new rules abolish this requirement, and simply require that citations to authorities include the year thereof.

Whither parallel citations?

In the last few briefs I've filed, I've cited only to the Virginia Reports. My colleagues call me a lazy, sloppy fool--and also criticize my decision to abandon parallel citations. I don't know which is the correct answer. I can think of arguments both for and against using parallel citations:

Arguments for parallel citations

• Even if the state court rules don't explicitly require them, parallel citations could arguably be proper Blue Book form. The Blue Book defers to state rules, but it favors citation to the regional reporter. See Rule 10.3.1; Bluepages B5.1.3; table BT.1.
• Presumably, the Court will continue to use parallel citations in its published opinions. Including them in your briefing will make things easier on the justices and their clerks.
• Parallel citations look more professional.

Arguments against parallel citations

• Parallel citations are useless and waste space. Everyone has access to Lexis, Westlaw, or Fastcase these days. The odds that anyone reading my brief will ever need a to pull a hard copy of a Virginia case from the Southeastern Reporter are negligible.
• Cite-checking parallel cites is a pain in the neck.
• I am lazy.

That's all I've got. What do you think? Am I slacking off, or are streamlined citations the way to go under the new rules?

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It's been a while since we inflicted one of these posts about the new rules on you, dear readers. Don't worry. This one will be relatively painless.

That's because Rules 5:9 (Notice of Appeal) and 5:10 (Record on Appeal: Contents) look pretty much the way they did before July 1. Nothing wrong with that.

Rule 5:11 (Record on Appeal: Transcript or Written Statement) includes a few changes. Subsection (a) explains that it is the petitioner/appellant's obligation to ensure that the record is sufficient to let the Court resolve the assignments of error. If the appellant fails to ensure that the record contains a necessary transcript or written statement of facts, the Court will not consider any assignment of error affected by the omission. The rule imposes a parallel obligation on the appellee with respect to cross-appeals.

Scary stuff, but don't panic yet. Rule 5:11(d) creates a mechanism for correcting and supplementing the record. Essentially, if anything material is omitted from a transcript, or if a transcript is untimely filed, by "omission, clerical error, or accident," the filing "may be supplemented, corrected, or modified at any time within 70 days from the entry of judgment appealed from." Notice must be provided, just as it would be for filing a transcript under normal circumstances.

After 70 days, the record can be modified, supplemented, or corrected by order of the Court sua sponte, or upon motion of any party, if at least two justices concur in a finding that the change is "warranted by a showing of good cause sufficient to excuse the delay."

This is good news, and part of the revisions' overall move away from the death penalty. We've all heard the horror stories about people--even experienced appellate practitioners--missing filing deadlines for transcripts. Historically, that's been one of the great booby traps of Virginia appellate practice. Subsection (d) now provides an explicit mechanism short of dismissal for fixing material errors in the record, which should allow the Court to reach the merits of more appeals.

Finally, Rule 5:11(e) explains what the "incidents of the case" are, in an apparent effort to improve the quality of written statements. In case you were wondering, the term refers to "motions, proffers, objections, and rulings of the trial court" pertinent to the appeal. You know . . . the sort of stuff you'd put in a written statement of the facts.

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Rule 5:8A, "Appeal from Partial Final Judgment in Multi-Party Cases," is a completely new--and highly technical--rule. It is intended to clarify who may appeal and when in cases involving multiple claims and multiple parties. The advisory committee's report indicates that the Rule was adopted in response to a general sense of confusion about appellate rights in multi-party litigation; procedure geeks will recognize it as an effort to allay some of the uncertainty created by the so-called "severable interest rule." See, e.g., Thompson v. Skate Am., Inc., 261 Va. 121, 127, 540 S.E.2d 123, 126 (2001).

This a thorny, technical area. The new Rule addresses it by placing the burden squarely on the parties and the trial court. It provides that, when claims for relief are presented against multiple parties, the trial court may enter final judgment as to one or more but fewer than all the parties only by entering an order expressly labeled "Partial Final Judgment," which contains explicit findings that:

• the interests of the parties and the grounds upon which judgment is entered are separate and distinct from those raised by the issues and the claims against the remaining parties; and
• the results of any appeal from the Partial Final Judgment cannot affect the claims against the remaining parties; and
• decision of the claims remaining in the trial court cannot affect the disposition of the claims against the parties subject to the Partial Final Judgment if those parties or later restored to the case by reversal of the Partial Final Judgment on appeal.

Got that? Now close your eyes and try to imagine yourself persuading a circuit judge to make those findings.

Rule 5:8A states that "no appeal shall lie from a refusal by the trial court to enter a Partial Final Judgment under this rule." It specifies that, absent a Partial Final Judgment order entered under its terms, an order that adjudicates fewer than all of the claims or rights and liabilities of fewer than all the parties in an action is not a final judgment.

The timing of an appeal under Rule 5:8A follows the normal deadlines in Rules 5:9 and 5:17.

This is bad stuff. Hairy procedural issues? Magic words and special incantations? Deadlines tied to the lunar calendar? It's almost like . . .

What Practitioners Need to Know about Rule 5:8A:

• Rule 5:8A requires entry of a Partial Final Judgment order with certain explicit findings as a prerequisite to the appeal of an order that is final as to some but not all of the parties.
• It is therefore imperative to develop an appellate strategy early in the case and to carefully analyze rulings that are dispositive as to part, but not all of the case, in order to ensure that the trial court takes the necessary steps and makes the required findings to preserve the right to an immediate appeal.
• If the trial court dismisses some (but not all) parties, but does not comply with Rule 5:8A, you may still be able to save your right to an immediate appeal by nonsuiting the remaining claims. But that is a high-risk and high-degree of difficulty maneuver. You will need to investigate statute of limitations and waiver issues (among other things) before even considering it.

And here's one last chilling thought: beware the interplay of Rule 5:8A, with its heady technical requirements, and Rule 5:1A, which provides that, if an attorney's failure to comply with the Rules results in dismissal, the Court may report the attorney to the State Bar.

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Time to dive like an Italian midfielder back into our analysis of Virginia's new appellate rules:

Today's Rule is 5:5, which governs filing deadlines, post-trial proceedings, timely filing by mail, and extensions of time. The Court makes a few material changes here, which are by and large practitioner-friendly.

As amended, Rule 5:5(a) specifies that the time periods for filing the notice of appeal (or cross appeal), a petition for appeal, or a petition for rehearing are mandatory. Notably, the Rule no longer states that the time period for filing a transcript or written statement of facts is mandatory. This appears to rectify (or at least ameliorate) one of the great booby traps of Virginia appellate practice.

Great news for practitioners and appellants; bad news for my practice.

Additionally, Rule 5:5(a) specifies that a single extension, not to exceed thirty days, may be granted if at least 2 justices find that the extension is "warranted by a showing of good cause sufficient to excuse the delay." This replaces the old, and somewhat draconian, standard that an extension is "warranted by the intervention of some extraordinary occurrence or catastrophic circumstance which was unpredictable and unavoidable."

Make of this change what you will. I'll continue to operate under the assumption that nothing short of a zombie apocalypse will win me a deadline extension.

Moving on, Rule 5:5(c) modernizes delivery options to specify that a document will be deemed timely filed if "it is transmitted expense pre-paid to the clerk of this Court by priority, express, registered, or certified mail via the United States Postal Service, or by a third-party commercial carrier for next-day delivery," and the sender keeps and produces on demand the receipt showing the transmission.

Finally, Rule 5:5(e) explains what to do when the zombies come. It states that, except as provided in Rule 5:5(a), a motion for an extension of time is timely if it is filed within the original filing deadline or any extension period specified by the governing rule. Simply filing the motion does not itself toll the original filing deadline or further extend the extension period.

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We continue our journey into the depths of madness through Virginia's revised appellate rules with a completely new addition: Rule 5:1A, "Penalties for Non-compliance; Show Cause; Dismissal." This Rule contains both good and bad news for practitioners.

Let's start with the good: As its caption suggests, this Rule governs what happens when lawyers screw up. It provides that the Court "may dismiss an appeal or impose such other penalty as it deems appropriate for non-compliance" (emphasis added) with the Rules. Except in cases of defective assignments of error and missed jurisdictional deadlines, the Court may issue a show-case order prescribing a time in which to cure a defect, or to otherwise show cause why the appeal should not be dismissed or other penalty imposed. That sounds a lot better than automatic dismissal, doesn't it?

So much for the good news; now here's the bad: Under new Rule 5:1A, if an attorney's failure to comply with the Rules does result in dismissal, the Court may report the attorney to the Virginia State Bar. The Advisory Committee's report notes that the Committee "wanted to make the public, and the legal community, aware that the Court does report attorneys to the Bar when their failure to comply with the rules results in a dismissal of an appeal."

Practitioners, you may want to read that last paragraph again.

On balance, I like this new Rule--and not just because it may (literally) scare us up some business. There is a misperception among some lawyers that the Court just goes around looking for reasons to dismiss an appeal. That's not correct, but there are sound policy reasons for strictly enforcing certain mandatory deadlines. And, as we've mentioned once or twice, assignments of error are really important. Those key rules are important and easy to understand. It's reasonable to expect the Court to impose the death penalty when an appellant gets that stuff wrong, and there should be consequences for a lawyer whose mistake costs his client an appeal.

But by and large, it's the other stuff--like formatting, non-prejudicial errors, and non-jurisdictional deadlines--that scares people and trips them up. This new rule gives the Court some leeway in addressing those mistakes.

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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.

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