24 May 2010

Virginia Fixes a Flaw in the Appellate Process

So, I'm reading through the Virginia Appellate blawgs and I find out that the Virginia Supreme Court has changed the Rules as they apply to appeals. Now, I haven't had a thriving appellate practice as a deputy commonwealth attorney, but I still have some memories of writing these things back in the day. So, I wanted to check to see if they fixed what I remember being broke.

You see, there's a technicality in Virginia law which serves no purpose but to trip up the unwary and allow petitions for appeal to be dismissed without any consideration of substantive matters. In the Court of Appeals the petitioner is required to list "Questions Presented" (5A:12). However, in the Virginia Supreme Court the petitioner is required to list "Assignments of Error" (5:17). In fact, the Supreme Court's rule goes even further and states that "[o]nly errors assigned in the petition for appeal will be noticed by this Court."

It was a distinction without a difference and basically required that the questions presented to the court of appeals had to be changed into a statement. For instance:

Was the trial judge wrong when he ruled the sky was gray?

would become

The trial judge was wrong when he ruled the sky was gray.

It may have had the distinction of being the dumbest thing in the entirety of the appellate process. However, anyone who forgot to make this superficial change got his appeal rejected out of hand. It was a particularly nasty trick on those who were new to appellate work. After all, one would not expect appellate rules to have superficially different formats which could lead to the dismissal of an appeal out of hand. Newer attorneys who had an appeal rejected by the court of appeals would change the heading and put any arguments in they had to address points made by the court of appeals and send it off only to have it rejected because they hadn't made this unimportant change.


The Supreme court has rewritten rules 5:17 and 5A:12. Both rules are more extensive than they were before, but the biggest change is that now the court of appeals now has the same requirement as the supreme court. Both use "Assignments of Error."

Now, these rules don't come into force until 01 July, but thank goodness they fixed that flaw.

1 comment:

Joel Rosenberg said...

Or, alternately, until July 1, start with "The trial judge was wrong when he ruled that the sky was gray?" (in the great tradition of "I shot the clerk? I shot the clerk?") and then do a global-search-and-replace for question marks, stopping after the opening thingee.