The Supreme Court of Virginia’s recent treatment of assignments of error has been inconsistent, and that makes life difficult for appellants and appellees alike.
Background: Supreme Court’s Crackdown on Assignments of Error Alarms Appellate Practitioners
For the past year or so, the Supreme Court of Virginia has been getting increasingly demanding in its treatement to assignments of error. Steve Emmert contributed an excellent essay on this topic last summer. He pointed out a few specific instances in which the Court had found assignments of error lacking:
- At oral argument on June 4, 2008, the Chief Justice interrupted an AAG and asked her how her assignment of error was sufficient. The assignment read, essentially, “The trial court erred in excluding the expert testimony of [the Commonwealth’s expert].”
- On June 10, 2008, the Court entered an order dismissing an appeal for an insufficient assignment of error in a legal malpractice case. The assignment read, “The trial court erred in granting [the appellee’s] motion for summary judgment.”
This was troubling. Virginia case law has long required an appellant “lay his finger” on an error by pointing out the exact legal ruling he was challenging. That was the standard, and these lawyers seemed to have their fingers in the right place.
Worse, the second assignment of error was almost identical to one granted in 2006, which read: “The trial court erred in granting the defendant’s motion for summary judgment.”
Emmert notes that the news alarmed–even stunned–experienced appellate practitioners, himself included. He determined that the best advice for appellants, which he attributed to an unnamed justice, was to include the word “because” in your assignments of error.
Emmert’s observations match our experience here at the Firm on the Move (TM). For example, we represented the appellees in a recent case where one of the assignments of error cited an evidentiary issue, then stated that the trial court had erred by overruling the appellants’ motion on that “and other grounds.” The Supreme Court reached the merits of the evidentiary issue, but ruled as to the other grounds that it would not address such a general and unspecific assertion of error.”
Continue Reading What’s an Appellant (or Appellee) to Do? Supreme Confusion Over Assignments of Error