NEWS AND NOTES FROM THE APPELLATE SCENE

 

[Posted November 22, 2008]  I’ve been playing some catch-up this week, as I was away at the State Bar’s midyear legal meeting for five days, in a locale that was significantly warmer than it was here in Virginia Beach.  Here are a few news items that will interest my readers.

 

Two Justices to Address VTLA

The Virginia Trial Lawyers Association will hold its annual convention in March in Williamsburg.  This meeting marks the 50th year of the VTLA’s existence, and is being held, fittingly, in the very hotel where the group was formed.

 

The association had previously confirmed the attendance of Justice Don Lemons to speak at the convention, on the ominous date of Friday the 13th of March.  The group has now secured another member of the court, Justice Bernard Goodwyn, who will address the convention on Saturday, March 14.  I don’t have details yet on the justices’ topics, but I’ll post them here when I get them.

 

VTLA convention chair Coleman Allen announced the news in these terms, which I echo:  “We are pleased as well as honored to have two such distinguished members of the Supreme Court of Virginia as Justice Donald W. Lemons and Justice S. Bernard Goodwyn appearing on the program.  Their presentations are certain to  be highlights of the Convention, and we are grateful for their participation in this very special event that will bring together so many trial lawyers, judges, legislators and others from across the Commonwealth, in celebration of the 50th Anniversary Convention of the Virginia Trial Lawyers Association.”

 

Rule Changes Take Effect January 1

The Supreme Court has promulgated several rule changes that will become effective at the beginning of the new year.  Of particular note to appellate attorneys, the court imports from the Federal Rules of Appellate Procedure the procedural protection against the trap of pre-filing a notice of appeal after rendition (announcement) of judgment, but before entry.  The new rules apply in both the Supreme Court (Rule 5:9) and the Court of Appeals (Rule 5A:6).  The recent case of Dillard’s v. Judkins had exposed the current rule’s lack of this protection, and the appeal was originally dismissed in June because Dillard’s filed its notices too early.  The court later reinstated the case after learning that enforcement would wreak chaos on a great many criminal appeals.  (The court subsequently decided the Dillard’s appeals on the merits in an unpublished order.)

 

Under the current rule, a petition for appeal must be filed within 30 days after the date of entry of the judgment.  Thus, as the Virginia rule currently reads, a notice that’s filed after the trial judge announces his ruling, but before he gets around to entering an order, is technically premature and ineffective.  But the court’s withdrawal of the June order, which had dismissed Dillard’s appeal for this very defect, signals that the court will apply this new rule immediately, instead of waiting the statutorily-prescribed 60 days before it formally takes effect.

 

Reminder on Holiday Closings

As I reported earlier, the Virginia appellate courts’ Clerk’s Offices will be closing at noon on Wednesday, November 26, and will remain closed Thursday and Friday for the Thanksgiving holiday.  Any pleading that is due on one of those days will be timely if filed on Monday, December 1.  If you really, really want to file something before the Clerk’s Office closes on Wednesday, then plan to get there before noon.

 

The Fourth Circuit, ever stoic, will be open all day Wednesday, closed Thursday, and open Friday for the receipt of emergency filings only.  If you go in on November 28 with a plain-vanilla pleading or brief, you’re going to get a dirty look, so just hold it until Monday.