SCV ANNOUNCES SIGNIFICANT RULE CHANGES

(Posted June 24, 2024) Professional journalists who cover government are fond of observing that when the government wants to hide news despite its being in plain view, they announce it on Friday afternoon. I am not about to ascribe any such ulterior motives to the Supreme Court of Virginia; it’s probably just a case of coincidental timing that the court on Friday afternoon announced entry of an order that makes significant changes to several Rules of Court.

By law, there’s a 60-day waiting period before the new rules take effect, so you have time to get used to the new provisions before August 20. Let’s take a peek at a few of the changes, with more emphasis on those in the appellate courts.

Rule 1:4 – General provisions as to pleadings. The order adds what I regard as a salutary provision to the paragraph on responsive pleadings, subparagraph (e). The new provision imports from the rule on requests for admission (Rule 4:11) language requiring a responding party to “fairly respond to the substance of” an allegation. It adds that “A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.”

This is as it should be. A responding party shouldn’t be able to deny an entire numbered paragraph merely because of a disagreement with one minor aspect of the pleading.

Rule 1:5 – Counsel and parties appearing without counsel. The court will now expressly authorize the signing of pleadings, notices, and briefs electronically or by a digital image of the signature. The current rule is a little ambiguous on whether counsel had to affix a handwritten signature every time. The new change also allows unrepresented parties to use e-signatures or digital images.

Rule 4:7A – Audio-visual depositions. There’s a simple adjustment here. After an A/V deposition, a witness now may read and sign (or try to correct) a transcript, though there’s still no provision for her approving or changing the video itself.

Rule 5:1B – Electronic filing. Rejoice! The old requirement for “a handwritten signature” will vanish in August, yielding to the steamroller of progress (and to e-signatures). In fairness, currently all e-filed document may be e-signed.

Rule 5:26 – General Requirements for all briefs. It’s here that we get a whopper of a change. For the first time – as far as I know, it’s the first time in the court’s history, going back to the 1770s – the Supreme Court has authorized the filing of sur-reply briefs. They’re limited to situations where the appellee has assigned cross-error and the appellant has filed a reply brief, so an appellee can’t file two briefs in a row.

This brings Virginia appellate practice roughly into conformity with the Federal Rules of Appellate Procedure (FRAP 28.1(c)(4)) on this point. The language of the new provision authorizes the filing “in support of the cross-error,” so I believe the appellee won’t get a second crack at the appellant’s assignments. The sur-reply is due 14 days after the appellant files the reply brief.

Rule 5:29 – Requirements for reply brief and reply brief in support of cross-error. This rule gets a new name and new provisions for the sur-reply. Heading off some appellees who might be a bit too clever, the court forbids the filing of a sur-reply unless the appellant has actually filed a reply brief. (Why would any appellee think to do such a thing, you ask? Why, to try to get around the page limits, of course.)

Rule 5A:1 – Scope, citation, applicability, filing and general provisions. Here the rules allow e-signatures in the Court of Appeals as well.

Rule 5A:10 – Record on appeal: preparation and transmission. The significant change to this rule is one of elision: Subparagraph (c), allowing for appeal on an abbreviated record, will vanish on August 20. This is probably a casualty of electronic transmission of the record, as it’s just as easy for the circuit-court clerk to transmit the whole record as it is to send up a portion of it. Candidly, I’m not sure how often parties used this procedure, so the elimination may not generate a noticeable change at ground level.

Rule 5A:12 – Petition for appeal and other petitions for discretionary review. The order inserts a new subparagraph (f) – thereby demoting the last two subparagraphs of the existing rule, which will now be (g) and (h) – that deals with the record. It requires the parties to cite to record pages in their briefs, assuming the trial court has sent that record up electronically. Currently, it’s permissible to cite documents descriptively, such as “defendant’s demurrer brief at 4,” but that’ll end soon. Petitions for interlocutory review must be accompanied by the relevant parts of the record, presumably because the circuit court won’t send the record up in those cases.

Rule 5A:13 – Brief in opposition. A new subparagraph (b)(3) now requires that the appellee also cite to pages of the record where it has arrived electronically, mirroring the provision in Rule 5A:12 for appellants.

Rule 5A:19 – General requirements for all briefs. The Supreme Court imports an existing requirement into this rule, where it’s more visible and hence more likely to be adhered to. New subsection (b)(1) sets out the appellant’s obligation to list assignments of error within 15 days after the clerk’s certificate of his receiving the record. The requirement exists now, but it’s buried in the middle of a long subparagraph of Rule 5A:25. I applaud its more prominent placement here. The rule also requires the inclusion of granted assignments of error and cross-error in the appellant’s opening brief.

Rule 5A:20 – Requirements for opening brief of appellant. In what every experienced advocate already knows, a new provision in subparagraph (c) states that assignments of error in the appellant’s brief “are binding on the appellant for substantive purposes, unless the Court has granted a motion to amend.” We all know not to change our assignments of error without the court’s permission, right?

Rule 5A:21 – Requirement for brief of appellee or guardian ad litem. This rule gets a parallel provision on the binding nature of assignments of cross-error. Not a surprise.

Rule 5A:22 – Requirements for reply brief and reply brief in support of cross-error. The sea-change of a sur-reply brief applies in the Court of Appeals, too. It has the same requirements and limitations as its SCV cousin in Part Five.

Rule 5A:25 – Appendix and preliminary designations of assignments of error. Here’s a belt to go with those Rule 5A:20 suspenders. Also in subparagraph (f), the court provides for the situation where the appellant submits preliminary assignments of error that prove, upon his filing the opening brief, to be misleading. The new provision allows the appellee in such a case to request leave to file a supplemental appendix, and pass that cost on to the appellant.

For our purposes, the major news item in this order is the provision for a sur-reply brief by the appellee to address her cross-error. Previously, she was limited to just one crack at briefing, while the appellant got two, even if the appellee raised a significant issue on cross-error. This is no doubt more equitable. My only wonder is how long it will take for an appellee to try to sneak in some arguments on the appellant’s assignments, and whether the court will smack the appellee down for that.

Meanwhile, the court continues to march into the Twenty-first Century by streamlining e-signing rules, and it sandpapers that one rough edge in the pleading rules, specifically Rule 1:4. I haven’t covered all of the changes here, so if you’re interested in agreements for payment of fines and costs over time (Rule 1:24) or specialty dockets (1:25), click on the link to the rule and check those out.

Between Friday’s notable changes and the court’s promulgation a couple of weeks ago of a long-overdue rule on preliminary injunctions, June 2024 is proving to be a watershed month for the Virginia Rules of Court.