Transformation of Appellate Practice in Virginia
October 26, 2021 By Nancy J. Goodiel
Just a few months from now, civil litigators will face the most significant change in civil procedure with the expansion of the Court of Appeals and the change in appellate procedure, effective January 1, 2022. This new legislation, providing appeals as a matter of right, will expand access to appellate review in Virginia. Six slots for judgeship have been created as a result of the new law signed into place allowing an appeal of right for all civil cases to the Court of Appeals. Previously, Virginia was one of very few states still in existence that denied some civil litigants an appeal as a matter of right from a court of record. The Virginia Supreme Court will likely continue to accept a few civil cases each year, meaning that published opinions of a three-judge Court of Appeals panel will likely become the final word on many aspects of Virginia law.
The appellate procedure is daunting, however, as the rules of procedure have been retooled, and many cases will still likely be refused because of a technical failure in appellate procedure. Litigants also need to be aware that there is a vast difference between appellate oral argument and oral argument at the trial level, in terms of both substance and procedure. Appellate oral argument is a formal process steeped in tradition and ceremony. Attorneys unfamiliar with this setting will surely stand out for failures in form, courtesy, and etiquette. Any civil litigator who plans on handling their own appeal will need training with the nuances of appellate procedure beforehand.
The first skill to hone will be ensuring that challenges to rulings below are properly preserved. Crafting assignment of error is markedly different than crafting emotional arguments in front of a trier of fact, such as a seven-man jury. Further, revisions to Parts 5 and 5A of the Rules of the Supreme Court of Virginia, effective January 1, 2022, mean counsel will need to familiarize themselves with new rules of procedure. But, first and foremost know Virginia Code §8.01-675.3 requires “Notice of Appeal to the Court of Appeals shall be filed within 30 days from the date of any final judgment order.” Further, an appeal from an interlocutory decree or order is permitted, and again the notice of appeal should be filed within 30 days from the date of the decree or order.
Lastly, COVID19 dramatically changed appellate practice in that historically, brief printing, paper filing, and appendix preparation was burdensome, requiring multiple copies of pleadings. The COVID changes to e-filing are now going to be permanent, as the court has refined its Virginia Appellate Court electronic system and is now capable of handling every possible filing to the Appellate Court.