Va. Supreme Court softens appellate rules

By Peter Vieth, Virginia Lawyers Weekly – 5/20/2014

The Supreme Court of Virginia may be signaling it really wants to decide cases on the merits, not toss appeals out of court for technical mistakes.

Without any prior announcement, a series of changes to the court’s rules took effect Friday. The changes appear to limit the number of appellate missteps that may be considered “jurisdictional” and – therefore – subject to dismissal.

One change expressly removes any fatal effect from the common mistake of assigning error to the trial court when a case is appealed from the Court of Appeals to the Supreme Court. The proper assignment of error in such an appeal is directed, not to the trial court, but to the decision of the Court of Appeals.

The change may be designed, in part, to codify the rulings of the Court of Appeals in a trio of cases decided last year. The court said some procedural errors that may have led to dismissal would no longer be considered fatal.

Other changes establish that the required exact page reference to the record of the lower court’s error is not considered part of an assignment of error.

“This is a softening of what you could otherwise regard as a savage Rule 5:17 (c),” said appellate lawyer L. Steven Emmert of Virginia Beach.

Other changes harmonize the rules of the two appellate courts regarding penalties for non-compliance, allowing “show cause” proceedings to invite corrections under many circumstances.

The court “lined these rules up so they’re both the same,” said Elwood E. Sanders with Richmond’s Lantagne Legal Printing. He said the changes should result in more “show causes” and fewer dismissals.

The court is saying, “We want to hear these appeals on the merits and we’re trying to streamline the rules,” according to Sanders.