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.