The Supreme Court of Virginia’s recent treatment of assignments of error has been inconsistent, and that makes life difficult for appellants and appellees alike.

Background: Supreme Court’s Crackdown on Assignments of Error Alarms Appellate Practitioners

For the past year or so, the Supreme Court of Virginia has been getting increasingly demanding in its treatement to assignments of error. Steve Emmert contributed an excellent essay on this topic last summer. He pointed out a few specific instances in which the Court had found assignments of error lacking:

  • At oral argument on June 4, 2008, the Chief Justice interrupted an AAG and asked her how her assignment of error was sufficient. The assignment read, essentially, “The trial court erred in excluding the expert testimony of [the Commonwealth’s expert].”
  • On June 10, 2008, the Court entered an order dismissing an appeal for an insufficient assignment of error in a legal malpractice case. The assignment read, “The trial court erred in granting [the appellee’s] motion for summary judgment.”

This was troubling. Virginia case law has long required an appellant “lay his finger” on an error by pointing out the exact legal ruling he was challenging. That was the standard, and these lawyers seemed to have their fingers in the right place.

Worse, the second assignment of error was almost identical to one granted in 2006, which read: “The trial court erred in granting the defendant’s motion for summary judgment.”

Emmert notes that the news alarmed–even stunned–experienced appellate practitioners, himself included. He determined that the best advice for appellants, which he attributed to an unnamed justice, was to include the word “because” in your assignments of error.

Emmert’s observations match our experience here at the Firm on the Move (TM). For example, we represented the appellees in a recent case where one of the assignments of error cited an evidentiary issue, then stated that the trial court had erred by overruling the appellants’ motion on that “and other grounds.” The Supreme Court reached the merits of the evidentiary issue, but ruled as to the other grounds that it would not address such a general and unspecific assertion of error.”

Howell v. Sobhan Adds Confusion

So that’s where we were last summer. It was scary, but we were adapting. We knew what we had to do: just add a “because” clause to our assignments of error. Right?

As it turns out, that depends on who you talk to.

Remember our discussion last week about Howell v. Sobhan? In footnote 6 of that opinion, the Court finds “no merit in the defendants’ argument that Howell’s assignment of error challenging the circuit court’s decision to strike her evidence and enter summary judgment for the defendants does not comport with Rule 5:17(c).”

Being an assignment of error junkie, I contacted one of the lawyers involved. Here’s what I found out: The challenged assignment of error read as follows: “The trial court erred in striking Ms. Howell’s evidence and entering summary judgment for the defendants.”


But it gets worse. The defendants actually challenged all three of the appellants’ assignments of error. (The other two were about as specific as the one above.) Frankly, I would have done the same thing.

At oral argument, Justice Kinser asked the defendants’ lawyer (and we’re obviously paraphrasing here), “Are you saying that the assignments error needed to say ‘the lower court erred in granting summary judgment because…?” He said,”yes,” to which Justice Kinser replied, “That belongs in the argument section, not in the assignments of error.” The lawyer continued his argument for another sentence, until the Chief Justice told him that he had limited time and would not win on the point.

That sound you hear is an AAG banging her head against the wall.

So Where Does This Leave Us?

The Court’s conflicting guidance notwithstanding, I think that Emmert’s recommendation is still right on the money. Adding a “because” can never hurt; even if you get dinged, your appeal won’t be dismissed for an overly specific assignment of error.

In fact, I sometimes go Emmert one better, and structure my assignments like a short syllogism:

  • Major premise: rule or proposition from case law (often with a citation);
  • Minor premise: key facts from the case;
  • Conclusion: the trial court erred because . . .

This is an idea that I borrowed from Bryan Garner in The Winning Brief. You can generally convey the necessary information in 75 words or less, if you write carefully. When you get this specific, you do need to be careful to ensure that your assignment covers everything you want to raise on appeal.

Alternatively, in Winning on Appeal: Better Briefs and Oral Argument, Judge Aldisert recommends stating the issue in a simple, declarative statement that could form the topic sentence of an opinion in your favor.

The tough question is what to do as an appellee: with limited pages on brief and time at oral argument, how hard do you go after a suspect assignment of error? I’d probably still take my best shot at exposing the assignment’s deficiencies at the petition stage, then see what kind of questions the panel asks. Based on that, I’d re-evaluate at the merits stage. But it’s certainly not an easy call.