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.