It’s not an unusual situation: The appellate lawyer realizes late in the game that a key document–a crucial exhibit, maybe, or a necessary transcript–is missing from the record. The document is supposed to be in the record. Everyone assumed that it was in the record. But when the lawyer double-checked the table of contents to the record, she noticed that it wasn’t there. And let’s make things even worse: we’re late in the game, and the record has already gone off to Richmond.
This is the part of the story where people start to panic. It’s a natural reaction, but one that’s completely unnecessary. This is a fixable situation, and one that is more common than you think. Here’s how to handle it in 5 easy steps:
- Remember to breathe.
- Make sure that the document is actually missing. It never hurts to double-check, and it’s relatively painless. Maybe you just breezed over the missing document.
- Call the Clerk’s office. Seriously. Before getting into any of the legal stuff, just try calling the office of Clerk of the Supreme Court of Virginia. It’s not unusual for a document to fail to make the trip to Richmond, and the Clerk’s office can often sort the whole thing out with a call to the clerk of the trial court.
- If that doesn’t work, prepare a petition for a writ of certiorari. Code Section 8.01-673(A) provides that “[t]he Supreme Court may . . . after reasonable notice to counsel in the appellate court, award a writ of certiorari to the clerk of the court below, and have brought before it, when part of a record is omitted, the whole or any part of such record.” Godfrey v. Commonwealth, 227 Va. 460, 465 (1984), and Washington v. Commonwealth, 216 Va. 185, 189 (1975), are also helpful. Rule 5:10 is pretty clear about what’ supposed to be part of the record; it’s usually pretty obvious when one of these items has been omitted as the result of a clerical error or oversight, and in my experience, opposing counsel is usually pretty reasonable about consenting to a petition to have them put back in. (In the unlikely event that opposing counsel disputes that, for example, a filed transcript or a rejected exhibit is part of the record, Rule 5:10(b) commits the dispute to the trial court in the first instance.) Just combine those authorities with a short, clear explanation of what happened. Aim for a 3-5 page document, and be sure to comply with Rule 5:4’s requirements for motions practice.