FAQ – WHAT TRIAL LAWYERS WANT TO KNOW ABOUT APPEALS

[Posted February 6, 2007]  Here’s a sampling of the most common questions I get from trial lawyers about appeals, starting with the most common one:

What are my chances of getting a reversal on appeal? This ultimately depends on several factors, most notably including whether the case is civil or criminal; whether you have some special benefit from the standard of review (such as where the trial court has rejected one of your jury instructions, or has set aside a verdict); whether the record has been well preserved; and the quality of appellate counsel on both sides. But from a purely statistical standpoint, here are the odds:

CIVIL CASES

Chances of getting a writ in the Supreme Court of Virginia: About 21%

After a writ is granted, chances of reversal, at least in part: About 60-65%

CRIMINAL CASES

Chances of getting a writ in the Court of Appeals: About 10%

Chances of getting a writ in the Supreme Court (after CAV review): About 2%

The Court of Appeals doesn’t segregate its merits-level dispositions into the civil and criminal contexts, so the best I can do for now is give you the overall reversal rate in that court of cases decided on the merits. That rate is about 9%.

How do I know whether I should appeal to the Supreme Court or to the CAV?  This one’s statutory. Code §§17.1-405 and –406 set forth the only cases over which the CAV has appellate jurisdiction. Those are administrative law, Workers’ Compensation, domestic relations, criminal, and traffic. Everything else goes to the Supreme Court.

Uh-oh. Based on that list, I just filed my petition for appeal in the wrong appellate court. Do I call my malpractice carrier?  H old the phone. By statute (§8.01-677.1), paperwork that is “otherwise properly and timely filed” in the wrong appellate court will simply be sent on to the correct one. Now, if you mistakenly file your petition for appeal in the trial court, I don’t know of any provision of law that protects you; in that case, keep that phone number handy.

I’ve got 90 days to file my petition for appeal, right?  No, it’s three months, which is not always the same thing. They have a saying in the courthouse at Ninth and Franklin: “Days is days, and months is months.” Check your rulebook carefully.

I just found out that one of my exhibits is not in the trial court’s record. Will the Supreme Court order that it be inserted?  No, but the trial court can. Matters relating to the contents of the record are handled in the trial court under Rules 5:10 and 5:11 (in the Supreme Court) and 5A:7 and 5A:8 (CAV). If you notice something’s missing, file a motion in the trial court to have it included.

I’ve heard that fewer assignments of error are better than more, as appellate jurists prefer that appellate issues be focused. Are there any exceptions to this rule?  I can think of two. (A) If you represent a criminal defendant, you have an obligation to raise as many issues as you believe will support reversal (among other things, to protect the client’s habeas rights in the event the appeal is unsuccessful). (B) If you’re seeking a remand for a new trial, and the trial judge made an evidentiary or legal ruling you don’t want to have to live with the next time around, you must appeal that ruling, or it becomes the law of the case.

I’m getting ready for oral argument. I raised five issues, but I only want to argue two of those. I’ve heard that if I don’t argue some of my issues, I have waived them.  Once upon a time, that was the case. But the General Assembly took care of that problem back in 1986, by enacting Code §8.01-679.1. Now, if you raise five issues in your brief but you want to focus exclusively on one or two in oral argument, you can do that. (But be prepared to discuss any of them; the court can and often does ask counsel to discuss a particular issue during oral argument.)

Does the identity of the trial judge affect my chances of getting a sympathetic ear in Richmond?  This is among the most enduring of appellate urban legends – the thought that a particular judge is held in such disdain in the appellate courts, that he’s overwhelmingly likely to get reversed in any appeal. Or the converse: A given judge is so universally respected, the appellate court will affirm out of respect for her.

In response, I cannot claim that I have interviewed the respective judges and justices on this point (nor would I); nor do I claim to be a mind reader, able to tell you what they think on this point. With that caveat, I can say that I have seen absolutely no evidence to support such a theory. The appellate courts review the record, not the judge.

The trial judge left my motion unadjudicated. Am I stuck? How do I appeal a ruling that wasn’t made?  This happens a lot, and such a non-ruling can, indeed, be appealed. The way you do so is to assign error to the trial court’s failure to rule on your motion. You need to have protected the record by pointing out to the trial judge that your motion is still on the table, and asking her to rule on it. She can’t evade appellate review by ignoring you.