[Posted March 4, 2015] Let’s take a look at some new and upcoming rule changes in the courts. Some of these aren’t appellate, but we may as well be comprehensive.


Hearsay rules

Last November, the Supreme Court of Virginia made changes in Rules 2:801 and 2:803, with a delayed effective date. The new provisions won’t take effect until July 1; the long interval was planned to allow the legislature to intervene if it saw fit. To the best of my knowledge, that didn’t happen in the session that just concluded, so you should get used to the new provisions.


The new language in Rule 2:801 relates to when prior consistent and inconsistent statements are admissible. The amendment doesn’t change Virginia evidence law; it effectuates some recent SCV opinions by placing them into the rule.


Rule 2:803’s new language is in item 6 of the enumerated hearsay exceptions, relating to authentication of business records. Again, the new language just reaffirms previous Virginia caselaw.


Discovery limitations

Last Friday, the court announced an amendment to Rule 4:11, effective May 1. The new provision limits the number of requests for admission that a party may propound. Starting in May, you can’t propound more than thirty requests, unless you get a court order. The limitation doesn’t apply to requests that are directed to the genuineness of documents; those requests remain unlimited.


This one came as a real surprise to me; back in the Dark Ages, when I handled trial work, I thought that requests for admission were a particularly valuable tool in narrowing the triable issues. After all, you can deny an allegation in a pleading for a great many reasons – basically anything more than a misplaced comma or a misspelling – but in discovery, you can make the Bad Guys lay their cards on the table.


As I see it, this rule change will make trying cases more complex and more expensive. If there’s a bright side, we may finally get an appellate ruling on the contours of the subpart rule, as I emphatically foresee plenty of litigation over this new provision.


Criminal discovery

The court is now accepting public comment on a proposal to provide fordiscovery in criminal prosecutions. You may submit your thoughts on the idea until June 30; instructions are on page 2 of the press release. I recommend that you review this and speak up, whether you like or dislike the idea. (For those who dislike it, you can find sympathetic comments starting on page 55, coming from the State Police.)


Provisional Bar admission

The court has amended Rule 1A:8, covering military spouses who seek to practice in the courts of the Commonwealth. The new provision seems uncontroversial to me; it specifies the method by which such admittees are sworn in.


En banc briefing in Fourth Circuit

Effective January 2, 2015, the Fourth Circuit amended its Local Rule 35. Now, the court may direct additional briefing when it grants en banc rehearing of a panel decision. Previously, the rule only provided that the parties file additional copies of their panel-stage briefs. The new-briefing order may come on motion by a party, or by the court sua sponte.


I think this is a positive change; the full court may well wish to consider issues that barely cracked the surface at the panel stage. As with most federal-appellate provisions, rules compliance should be quite easy, since the court’s order granting rehearing will spell out what the court wants the parties to do.


Injunction appeals

The Supreme Court of Virginia has accepted comments from the public on a Boyd Graves Conference proposal to substantially modify Rule 5:17A, which deals with review of the grant or denial of injunctions under Code §8.01-626. Currently, parties may appeal the interlocutory grant or denial of temporary injunctions, but not permanent ones that appear in final-judgment orders. For the latter category, you have to use the normal appellate process, which can take almost a year.


The comment period has closed, and the court will consider at an upcoming business meeting whether to implement the change. I believe that this change, too, is a very good idea. An injunction at any stage of a case can be a singularly damaging event, and prompt review of such actions is a very useful tool.


By the way, the proposal would also create a parallel rule in Part 5A, for immediate review of injunctions in cases where the Court of Appeals has appellate jurisdiction.


An early look at some federal rule proposals

If you want to monitor the deep horizon, check out this report of some contemplated changes to the Federal Rules of Appellate Procedure. There are some significant amendments, including clarity on amicus filings, amending the word-count limitations for brief lengths, and ending the three-day rule when a brief is served electronically. One key provision would address a split in the circuits on the appellate effect of a district court’s erroneous extension of the deadline for filing post-trial motions.


The time for public comment has passed, but if the Judicial Conference’s advisory committees decide that they like these suggestions, they’ll forward the matter to the Committee on Rules of Practice and Procedure. The next steps would be the Judicial Conference, the Supreme Court, and then Congress. The anticipated effective date of the changes is December 1, 2016, so I suspect you should still have an opportunity for some input at one stage or another.