Last Friday, the Supreme Court of Virginia handed down a batch of eighteen opinions and two published orders. One of them, Shapiro v. Younkin, provides a lucid, well-reasoned treatment of the rules regarding transcripts and written statements of fact.
Please ignore it in its entirety. To paraphrase one of Caroline’s favorite writers, there is a monster at the end of this opinion.
At issue in Shapiro was whether the circuit court erred by dismissing a plaintiff’s appeal from the general district court because the plaintiff had failed to secure a court reporter, in violation of the circuit court’s rule requiring that a court reporter be present at the trial of all civil cases.
Shapiro brought a landlord-tenant suit against Younkin in general district court, proceeding pro se. He lost and appealed to the circuit court, where he also appeared pro se. The court’s local rules required that a court reporter be present at all civil trials, and that a party appealing a GDC case arrange to have a court reporter present at the circuit court trial.
Shapiro failed to arrange for a court reporter, so the circuit court dismissed his appeal with prejudice. Later that day, Shapiro submitted a written statement of facts. The trial court declined to enter the statement. Instead, it wrote on the face of the document that the statement did not accurately reflect the events at trial, which were noted in the court’s order.
[Are you still reading? Because there is a monster at the end of this opinion.]
Shapiro–still proceeding pro se–appealed to the Supreme Court. He argued that the dismissal of his case violated Code Section 17.1-128, which provides that the failure to secure a court reporter will not affect the proceeding or trial. He also claimed that the court violated Rule 5:11 by failing to certify his written statement of facts.
The Supreme Court agreed. It reversed the trial court’s judgment and remanded the case, holding that the trial judge had violated both Code Section 17.1-128 and Rule 5:11.
Justice Millette, writing for the Court, had little trouble with the first point. The trial court’s dismissal of the action pretty clearly runs afoul of Section 17.1-128’s rule that the failure to secure a court reporter won’t affect the trial.
As to Rule 5:11, the Court walked through the requirements of Rule 5:11(c) and (d), which govern the preparation of a written statement of facts. It explained that those rules exist “to provide an appellant a means to establish a record for appellate review without incurring the substantial expense of obtaining a transcript, which for some appellants may prevent their ability to appeal from an adverse judgment.”
[Perhaps you do not understand. There is a monster at the end of this opinion.]
Under Rule 5:11, a trial judge is authorized to correct errors or deficiencies in the written statement on her own initiative. A trial judge may not, however, simply refuse to certify a proposed written statement of facts. The trial judge must try to create a record for appellate review that contains a fair statement of facts by making reasonable changes to the written statement, or it must certify how the record is incomplete. If all else fails, the proper remedy is to order a new trial so that a proper transcript or written statement can be prepared.
That all seems reasonable, doesn’t it?
But then you try it yourself and . . . procedural default!
[I told you there was a monster at the end of this opinion.]
What You Need to Know About Shapiro:
- Don’t Believe a Word of It. All of the law in Shapiro is right, but it will lead you astray. From a practitioner’s standpoint, the written statement of facts is a trap. For the statement to work, it needs to show that you raised your appeal points at trial–in other words, you get a second shot at a procedural default. And then you get a third shot: check out Rule5:11(c)’s crazy notice and presentation deadlines:
[W] ithin 55 days after entry of judgment a copy of such statement is filed in the office of the clerk of the trial court. A copy must be mailed or delivered to opposing counsel accompanied by notice that such statement will be presented to the trial judge no earlier than 15 days nor later than 20 days after such filing . . .
- Scheduling Difficulties Will Arise. That 15-20 span inevitably will fall over a holiday. The court will be open for a half day during the entire five-day window. Opposing counsel will be in trial, and your judge will be in Grand Cayman. Luckily, the the trial judge can endorse a statement signed by all counsel “forthwith upon its presentation to him,” and the trial court’s signature on the written statement will count as certification that the procedural requirements of Rule 5:11 have been met. So maybe you can finesse this and do it all by mail . . .
- Opposing Counsel Will Object. But then you get yet another shot at a procedural default: opposing counsel objects. Objection? Now what? According to the Rule:
Notice of such objection specifying the errors alleged or deficiencies asserted shall be filed with the clerk of the trial court . . . within 15 days after the date the notice of filing the written statement (subsection (c) of this Rule) is filed in the office of the clerk of the trial court or, if the transcript or written statement is filed before the notice of appeal is filed, within 10 days after the notice of appeal has been filed with the clerk of the trial court.
- Aack! And the trial court needs to rule within 10 days of the objection–10 days?! AACK!! (The trial court does have the ability to correct errors in the transcript after notice and a hearing, so long as the record remains in the trial court.) All of which leads to O’Keeffe’s First Law of Virginia Practice:
- If it’s worth going to court, it’s worth getting a court reporter. Always. Consider it a cost of doing business. If something isn’t in the record, then it never happened. If it never happened, then why did you bother going to court?
If you take nothing else away from our time together, please remember this: for the sake of your lovable, furry old
malpractice carrier appellate counsel, please hire a court reporter. And let’s just pretend this whole Shapiro thing never happened.