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.