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Follow the Rules: ‘Death penalty’ still there, but lawyers may get second chance

Attorneys who practice before the Supreme Court and the Court of Appeals better pay attention to the new Appellate Rules immediately.

The new rules get right to the point: If the lawyer’s failure to comply leads to the “death penalty” of dismissal, the court “may report the attorney to the Virginia State Bar” for discipline.

But the rule also makes clear that this appellate death penalty will be imposed only in limited circumstances: for not complying with the rule on assignments of error or certain mandatory filing deadlines.

Otherwise, the court may allow any defect to be fixed before dismissal. The current rules have no such procedure for correcting errors.

Justice Donald W. Lemons, who convened and chaired the 27-member committee that produced the draft of the new rules, said the rule on dismissal, Rule 5:1A, reflects the rationale for the revision: making the rules more user-friendly, removing traps for the unwary and solving problems short of dismissing an appeal before it is considered on its merits.

Lemons attempted to get a cross-section of the judicial system for the committee, which included court clerks, representatives of bar groups and attorneys from such traditionally antagonistic practices as personal injury and insurance defense and prosecution and criminal defense.

Make it the same

A major goal of the committee’s work was harmonizing the rules between the Supreme Court and the Virginia Court of Appeals.

The rules that presented the most difficulty for practitioners were the different requirements for petitions for appeal. The court of appeals rules require that a petition for appeal contain “Questions Presented” but say nothing about “assignments of error.” Supreme Court rules say nothing about “Questions Presented” but require “Assignments of Error.”

Confusion on the distinction had the same effect in both courts: dismissal of the appeal, as has happened frequently when an inattentive practitioner assumed that his petition for appeal to the Supreme Court required only minor editing from his petition to the Court of Appeals.

Under the new rules, Assignments of Error would continue to be jurisdictional in the Court of Appeals as well as in the Supreme Court, but Questions Presented no longer lurk in the rules.


Another significant change allows pleadings to be filed through Federal Express, UPS and other commercial carriers as well as by registered or certified mail, so long as the method includes a receipt that shows that the document was posted before the filing deadline.

The old rules required the pleadings to be sent through the postal system, so that pleadings posted before a deadline were considered to be filed in a timely manner while pleadings posted before the deadline by a commercial carrier were not if they arrived at the clerk’s office after the deadline.
Motions practice

Rule 5:4 and the advisory note to it also specifically acknowledge a motions practice before the Supreme Court. “Such motions may be filed in any pending or contemplated appeal, and may request from the Court any form of relief that is available to the movant,” the note says.

Lemons insisted during the committee’s deliberations that the court always has been receptive to motions, but some members responded that many practitioners interpreted the absence of any language on motions in the rules as barring them.

Already in place

The comprehensive revision took long enough that the Supreme Court adopted two of the most substantive of the changes piecemeal.

In January 2009, the court amended Rule 5:9 to permit a notice of appeal to be filed after a judge has ruled from the bench but before he has entered a written order, with the notice considered to be filed on the day the order is entered. Before the amendment, the rule at least arguably made ineffective the filing of a notice of appeal before the order was entered.

In February 2008, it adopted Rule 5:6, which set more stringent requirements on the size and type of fonts that can be used in briefs and required more contact information for attorneys and the filing of electronic copies of briefs.
Harmonization of the Supreme Court and Court of Appeals rules does not extend to fonts and type sizes and to page lengths. The Supreme Court rules require 14-point type in one of three fonts. The Court of Appeals requires only 12-point type and does not specify the font.

A petition for appeal in the Supreme Court is limited to 6,125 words, while one in the Court of Appeals may be twice as long.

The Supreme Court rules make a further reduction in a petition for rehearing. The 2008 amendment limited the length to 15 pages and 3,000 words. The new limit is 10 pages and 1,750 words.

Such details illustrate why appellate specialization will continue to be a growth area, said Charlottesville lawyer and committee member, R. Lee Livingston, who was appointed primarily as a representative of the personal injury bar.

The new structure of the rules gives him more comfort in being able to adequately represent clients in the one or two appeals he files a year, he said. “A good index that’s intuitive … will serve us all real well.”

Still, “unless you live there and work on appellate cases all the time, you have to go back and re-read the rules,” he said.


The Virginia Judicial Council or the Supreme Court, which had the final say on approval of the rules, refused to go along with a few substantive recommendations by Lemons’ committee.

For example, the Judicial Council eliminated the recommendation that would have permitted a written statement of facts to be used in lieu of a transcript only if the judge authorized it before a hearing.

The issue was among those most debated by the committee, with some members questioning the wisdom of anything that would be perceived as affecting poor litigants and others, especially judges and family law practitioners, countering that the effort to create a statement of facts often costs more than a transcript.

The Supreme Court also changed Rule 5:8A, which would have permitted an immediate appeal when a circuit judge has entered final judgment for either a claim or a party after issues were resolved as to one claim or party but other parties or claims remained before the court.

The new rule allows for the appeal of a partial final judgment as to parties. The current rules say nothing about partial final judgment.

Lemons said substantial contributions to the committee’s work came from clerks of the appellate courts, Patricia Harrington from the Supreme Court and Cynthia McCoy from the Court of Appeals; University of Virginia law professor Kent Sinclair, the reporter of decisions for the Supreme Court; Gregory Lucyk, chief staff attorney for the Supreme Court; and Robert Loftin and Joanne Rome, Lemons’ law clerks during the committee’s deliberations.

“I was amazed at the ability of a widely diverse group to come together on that guiding principle,” said Livingston, “There were no turf battles.”

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