SMFAQ’s

(SOME MORE FREQUENTLY ASKED QUESTIONS)

[Posted November 23, 2007] Early this year, I posted an essay in which I listed some appellate questions I frequently get from trial lawyers, or those who handle appeals only occasionally. Here’s a new set of questions and answers relating to what these lawyers want to know about appellate practice and procedure that isn’t always in the rule book.

General

When you recommend that I read the rules, are you referring to rules surrounding the issues of the case, or the appellate rules of procedure?

The rules relating to appeals. If you’re going to the Supreme Court, it’s generally Part 5 of the Rules of Court; it’s Part 5A for the Court of Appeals. You should also check the statutes that relate to civil appeals, starting at 8.01-669, or to criminal appeals, starting at 19.2-317. There are also some important appellate statutes within Title 17.1 (Courts of Record); Chapter 3 relates to the Supreme Court, and Chapter 4 deals with the Court of Appeals.

I went to work on a criminal appeal from the Court of Appeals to the Supreme Court, and found that yesterday was the last day to file it.  Do I file a motion for a delayed appeal or do I draft it and have the client file it pro se? 

You should go ahead and file it yourself. A relatively new Code section, 19.2-321.2, gives you six months to file a petition for a delayed criminal appeal. The statute is fairly detailed about what’s required, so you just need to track it carefully. There is a similar statute that enables you to seek a delayed appeal from the Court of Appeals; that’s 19.2-321.1. The reason for these statutes is that a prisoner would be entitled to a writ of habeas corpus for ineffective assistance of counsel anyway, so this saves the courts the process (and the delay) of processing that petition.

Briefwriting

When I file a petition for appeal, how do I get the record number for the appeal to put on the cover page?  I assume the record number is not the same as the number of the case at Circuit Court, level since the Supreme Court would want to use its own numbering system.

Your assumption is correct; the Supreme Court uses a separate case numbering system. On the petition for appeal, you simply leave a blank where the case number will go, and the Clerk fills that in. You can then use that number on all subsequent pleadings and correspondence.

In preparing the petition of appeal, is it a good idea to review the case record at the trial court to  make sure that everything that you are referring to in the petition of appeal is actually in the case record?

Absolutely. Normally the trial courts are very good about including everything that has been tendered, but you want to be sure. And once the record goes up to Richmond, you’ll get a list from the trial court clerk, showing everything that has been transmitted (which is not always everything in the file). You need to look that over very carefully, not just give it the cursory glance that’s typical of most lawyers. I handled one appeal recently in which the case-dispositive document was a simple transmittal letter from one counsel to the trial court clerk, with copies to opposing counsel. The trial court clerk hadn’t seen fit to include that in the package that went to the appellate court (mostly pleadings, transcripts, orders, and briefs), so we had to ensure that this simple but vital letter was added.

Do attorneys normally use appellate services to print the petition for appeal, and is this a taxable cost if the appeal is granted and you prevail on the merits?

Most lawyers don’t; I always do, because it looks more professional to have a petition printed and bound instead of just stapled in the upper left-hand corner (which is all the rules require). As for taxability, the answer is frankly a little bizarre, but here goes:  The petition for appeal is technically not a “brief” (it’s a petition), so the costs aren’t taxable.  But the appellee’s brief in opposition IS a brief, so that’s taxable.  In reality, it doesn’t matter, because either party will quickly bump up against the $200 limit for recovery of printing costs set out in Code §17.1-605 at the merits stage alone.  Accordingly, the cost for printing at the petition stage is effectively not recoverable for either side.

Oral argument

I’ve received a notice to attend oral argument in three weeks.  I’m concerned that my going up there, having never even seen one of these appeals, will do more harm than good. Can I waive oral argument at this late date, and should I?

If you’re at the petition stage, and you’re the appellant, you can waive oral argument simply by sending a letter to the Clerk, saying so. (If you’re the appellee at the petition stage, you don’t get oral argument anyway.) If a writ has been granted and the court is hearing the case on the merits, then you should not even try to waive oral argument; just go and do your best. As for whether you should waive oral argument on a petition, my advice is this: If you’re certain that you will be unprepared, then waive it. Otherwise, go and do your best.

What if a Justice asks me a question that completely stumps me, in that I have literally no idea even what he or she is saying to me? What if she uses some Latin phrase with which I am not familiar (that language is rarely used in General District Court)? Do I come clean or do I stumble around?

I seriously doubt that anyone will ask you a question with a Latin term that’s more obscure than, say, “res judicata.” These justices aren’t like that; you will find them polite, pleasant, and easy to get along with, although they emphatically will ask tough questions if the situation calls for that. Your job is to think of as many of those tough questions as you can, well before you go there, and craft the best possible answer for each of them. That way, you sharply reduce your chances of having to wing it, which is always a bad idea. If one of the justices asks you a question and you just don’t know the answer, you should candidly acknowledge as much, and ask for leave to submit the answer in writing within something on the order of 72 hours. If the justice says it’s not necessary for you to submit a written answer, accept that decision and simply move on. If you get leave to send in an answer, it should come in a very short letter, without any argument or comment upon the information thus conveyed.

What if I assigned an error, and now reviewing the argument of opposing counsel and the transcript, I conclude that I did not properly preserve the issue, but the justices ask me a question on that particular assignment of error? Should I agree that it was not properly preserved and move on, or try to maintain that it was preserved, when in fact, I most likely did not?

Here is an opportunity for you to obtain something enormously valuable, that you can’t buy in stores: Personal credibility with the court. You need to make an honest assessment of whether you adequately preserved the issue. If you honestly believe that it wasn’t preserved, then you can do yourself a world of good by acknowledging as much, preferably in a letter to the court well before the argument date. (That way the court will be spared from spending time researching and considering the issue in advance.) If you think it was preserved, at least passably, then go ahead and argue it, but be prepared for questions on that preservation issue.

But isn’t that abandoning my current client, in the hopes of my becoming a better advocate in future cases? What about my duty to represent THIS client zealously?

If you’re convinced that you really didn’t preserve the issue in the trial court, then you won’t be giving up anything of value by conceding the point. And unless that’s the only issue you’re appealing, then the credibility benefit to you kicks in immediately, so you might profit by it in the same case on another issue. Keep in mind that no justice will cast his or her vote based solely on which lawyer was straight with the court, but credibility is one of those inherently valuable things that cannot hurt you and can help you, in this case or in the future.

Am I permitted to argue other case law and argument that was not in my brief?

With regard to new caselaw, the answer is yes, but if you do, send a copy of the case (or at least the cite) to your opponent in advance. You should also send a letter to the Clerk that says that you intend to rely upon the case of Smith v. Jones, 123 Va. 456 (1937) during oral argument on assignment of error #2; copy your opponent on that letter. The sooner you do this, the better; a letter that arrives in the Clerk’s Office the day before oral argument is likely to do you little good, as no one (either your opponent or the court) will have had time to look into the new case.

With regard to new arguments that aren’t in your brief (and I’m not talking about the logical extension of your previous argument, which is necessary to respond to your opponent’s argument), forget it. Doing that will get you the Death Stare at best, and likely a stern lecture on raising issues that aren’t in your brief.

Which cities do the writ panels actually meet?  Do panels usually meet in an unused courtroom in the local courthouse?

The Supreme Court’s writ panels almost always meet in the Supreme Court building at Ninth and Franklin Streets in Richmond. The exception is that the court “goes on the road” during some summer panel meetings, to varying locations around the Commonwealth. In those instances, the court tries to schedule “local” cases for argument, to cut down on attorneys’ travel time and to enable litigation to proceed relatively close to where the trial took place. On these instances, the court does indeed use courtrooms in local courthouses.

The Court of Appeals meets in four different locations – Chesapeake, Salem, Alexandria, and the “home court” in Richmond, at Eighth and Franklin. It is possible that the court may convene occasional writ panels (for criminal and traffic cases only) in other locations.

By the way, the Fourth Circuit also goes on the road from time to time. It may convene in courthouses or even in law schools scattered about the circuit. But the great majority of those arguments are in the Richmond headquarters of the court, at Tenth and Bank Streets (about a block and a half away from the Supreme Court of Virginia).

How often do writ panels meet?

There’s a schedule posted on the courts’ web sites:

Supreme Court of Virginia

Court of Appeals of Virginia

Fourth Circuit

How far in advance will I be notified of the meeting of the writ panels to do oral argument?

You’ll usually get about three to four weeks notice before your argument date.

What if I have a scheduling conflict?  Will the clerk be accommodating and re-schedule oral arguments?

You’ll usually find the court to be fairly accommodating if you have a problematic schedule conflict. You won’t get a new date for a bad hair day or a hangnail, but if you have a real problem – for example, a circuit court case that’s been continued twice, and that has four lawyers, each with his own set of scheduling problems – then you can probably get your oral argument moved. And the court has a heart, and will usually accommodate previously planned vacations (just don’t try to schedule the vacation after you receive the notice). That being said, you should do everything you can to avoid making that call. And in a pinch, virtually every trial court will respect a letter from the appellate court as the basis to reschedule a lower court proceeding.  Now, whether your spouse will be similarly understanding, you’re in a better position to say than I am. 

Do you always go to the writ panel to do oral arguments or do you ever phone in your oral argument?

I always attend the oral arguments in person, as I find it much more productive to do so. If a judge or justice asks me a question and I give an answer, I can often see from the reaction whether my response is satisfactory, or if the questioner is clearly still troubled by the issue. You don’t get that kind of nonverbal feedback with audio only. But in case you’re worried, you should know that phoning in an oral argument isn’t considered by the court to be an implied concession that your case has little merit, especially if your office is a great distance away from the site of the panel. By the way, I always try to attend my opponents’ writ arguments, too, even though I am not permitted to speak. I always want to know what interests the court, what questions are asked, and what legal issues the court may come up with sua sponte.

Do I check in with the clerk prior to going to the location where the writ panel is meeting?

You can call a few days in advance if you like, but you’re not required to do so. You can do so in case you need directions, or to confirm any technical details of your arrival. You will check in with law clerks once you arrive at the location of the argument; they will direct you to your courtroom.

Bonds

The panel has awarded me an appeal. Now I have to get a bond filed at circuit court to cover costs.  I called the traditional bonding companies and they only post criminal bonds.  Which firms specialize in appellate bond work?

The bond for costs alone can be posted without a surety company. It’s usually for $500, so you just submit the form bond in the rules of court, along with a check for $500, to the clerk of the trial court, and that takes care of it.

My client wants to file a bond to suspend imposition of judgment and cost.  How much collateral will my client have to put up with the surety who issues the bond?  Is it ten percent of the face value of the bond or more?

A supersedeas bond is another matter entirely; if you want to suspend the judgment pending appeal, you need to contact an insurance company that writes bonds like that. I suggest an independent agent (your car insurance company probably won’t write these), or one that specializes in business insurance. It’s best to arrange a relationship with such a company in advance, so they know what you’ll need and can simply prepare the bond to your direction, quickly and effectively. Your client will almost certainly have to put up sufficient security to cover the amount of the bond. If the only quote you get from the first insurer you contact is 10% (which is typical of criminal bail bondsmen), you need to keep looking.

The appendix

I filed my bond and filed my designation of materials to go into the joint appendix.  I’m now ready to prepare my joint appendix.  I look to Rule 5:32(c) for the content of my joint appendix.   It says in subparagraph (4) that I must include a title for each paper contained in the appendix and its filing date.  Does this mean I must prepare a separate page for each document that gives its title (e.g., exhibit 2) and the date it was filed (e.g., admitted into evidence)?

No, you don’t need a separate page for each document. This provision essentially (and probably redundantly) requires a table of contents for the appendix, and specifies the format.

If I don’t make a document a part of the appendix, can the court still look at it, if it finds it material to the argument and discussion?

The answer to this lies in Rule 5:32(g): “It will be assumed that the appendix contains everything germane to the questions presented. This Court may, however, consider other parts of the record.” There’s a parallel provision for the Court of Appeals in Rule 5A:25(h). So do your best to include everything you’ll need, but don’t lose sleep if something arises that’s addressed outside the appendix; you can ask the court to delve into the record if you have to.

In marking the appendix in relation to the trial transcript, do we give specific page and line number, or just pages such and such through such and such?

A citation to the page numbers alone complies with the rules. On occasion, though, you may want to refer to the line numbers, to key the court’s attention to a particular passage. If you do that, you can use this citation form: “Tr. 47, l. 4-9.”

Do we list out all of the exhibits from trial that we want as part of the appendix, or does that automatically become part of this appendix?

You need to list them. Rules 5:32(d) and 5A:25(d).

Printing briefs and the appendix

Suppose I am representing an indigent client and want to save money by not using an appellate service to prepare the petition.  Rule 5:6(b) requires me to bind the brief on the left-hand side.  I assume that just using a stapler will not do.  Is there cheap service that will bind the brief for me in an acceptable manner?

Stapling in the upper left-hand corner definitely will not do at the merits stage (though it’s acceptable at the petition stage). It is, however, possible to staple your merits-stage briefs down the left side, then cover those staples with a heavy-duty tape.  It may not look like much, but it’ll be rules-compliant, and will further add to the mythic status of duct tape as a solution for any problem, large or small.  As for copying costs, you can often save some money by going to a commercial copying service, such as Kinko’s or BizPort, but you won’t get appellate help beyond that; these companies do not have the practice expertise of the appellate specialist companies. I really regard doing all this as a false economy. Some larger firms (including the Attorney General of the Commonwealth) bind their briefs in-house, so it can be done, but you need to be very careful about the technical rules.  It really is far preferable to go ahead and use the pros.

In my joint appendix, if I make an omission in the text or transcript, I have to indicate it with an asterisk.  Is this referring to the table of contents, or is this requiring me to insert a page with asterisks whenever I skip some pages of a transcript?

The asterisks go in the body of the appendix, at the top of the first page after the omission. So for example, if you’re including pages 1-27 and 35-42 of the transcript, you’ll put asterisks at the top of page 35. You don’t need to put asterisks in the table of contents.

The joint appendix is supposed to omit immaterial matters.  These include captions, subscriptions, etc.  Does this mean I’m suppose to redact captions where they are found, such as the complaint?

Not if they’re an integral part of the pleading. Some lawyers may add what amounts to a title page to a trial court pleading – a page that includes nothing except the name of the case, the title of the pleading, and maybe counsel’s name and address. The next page repeats the caption and title (“Motion for Summary Judgment”) and starts the argument. If your document includes “fluff” pages like this, you can omit them. The same goes for certificates that don’t address any contested aspect of the case.

Are you required to sign the certificate required by Rule 5:17(e) at the end of the petition or can a representative of the appellate service who is printing the petition, filing and serving the copies sign it?

Surprisingly, the rules do not require that this certificate (which deals with identity of parties, service of copies, and so forth) be signed by anyone. That being said, the safest thing is for the attorney to sign. Note that your signature can be electronically reproduced and inserted in the brief by your printer; you give the company a clear exemplar, which they scan and “paste” at the appropriate place in your briefs. One last point – the Rules contain one tricky provision related to signatures. Rule 1:5 provides that “Signatures to briefs and petitions for rehearing may be printed or typed and need not be in handwriting.” That enumeration (briefs and rehearing petitions) does not include pleadings, such as a petition for appeal, and thus the rule might technically require a “live” signature on petition for appeal. But in my experience, this is a non-issue, in trial courts and in appellate courts.  If you permit your printing company to insert a scanned copy of your signature onto your briefs and petitions, you’ll be fine.