Appellate rules fine-tuned, comments are sought

By Peter Vieth, Virginia Lawyers Weekly – 4/24/2015

The Supreme Court of Virginia announced a batch of mostly technical rule changes this month that address procedures in that court as well as the Court of Appeals.

One of the changes will allow attorneys to bring newly discovered authorities to the courts’ attention, even after briefing or oral argument has taken place.

Also this month, both the high court and the Virginia State Bar released proposed rule changes for comment. The court plans to revise the language governing appeals from the State Corporation Commission. The VSB seeks to amend rules on reinstatement of disbarred lawyers, regulation of foreign lawyers, lawyer self-reporting and required disclosures during disciplinary proceedings.

Changes in rules for appeals

The Supreme Court approved a number of changes in appellate practice rules, all taking effect on July 1.

Both the Supreme Court and the Court of Appeals get rules providing for a speedy appeal of any injunction, regardless of whether the injunction is temporary or final. The Supreme Court had earlier rejected use of expedited review for final injunctions. The changes affect Rule 5:17A and add a new Rule 5A:38.

The change was recommended by the Boyd-Graves Conference, which considers civil procedure reforms civil.

Another group of changes was recommended by the Virginia Bar Association’s Appellate Practice Section.

The court added new rules for both appellate courts permitting letters to the clerk to alert the court to newfound “pertinent and significant authorities.” The rules are 5:6A and 5A:4A. The letter – not more than 350 words – must state reasons for the supplemental citations, referring to a page of a previous brief or to a point in oral argument.

The letter must be filed within 14 days of the last argument, written or oral. The court has discretion to refuse to consider the supplemental authorities if they “unfairly expand the scope of the arguments,” raise issues that should have been previously briefed, are untimely or are “otherwise inappropriate to consider.”

Among other changes recommended by the VBA panel:• Modifications to the rules for assignments of error, at 5:17(c)(1) and 5A:12(c)(1), now expressly allow an appellant to identify “specific existing case law what should be overturned, extended, modified, or reversed.”

  • At the petition stage, appellants generally skip the opportunity to submit reply briefs, because doing so waives the right to make your case in person. If the appellee assigns cross-error, the appellant may file a response – limited to the cross-error – without waiving oral argument. The deadline for such a reply brief is now seven days. The change in Rule 5:19 will extend the time limit to 14 days.
  • The court has cleared up confusion for lawyers making one final bid to get the Supreme Court to take up their appeal. There were two rules addressing petitions for rehearing at the writ panel stage. Now there will be but one. The process “should be a lot more uniform,” commented L. Steven Emmert of Virginia Beach, who blogged about the rule changes. In a nutshell, the page limit is 10 and you have to file electronically, unless you’re an inmate or get special dispensation, Emmert said. The change eliminated Rule 5:20A in favor of an amended Rule 5:20
  • The lawyer for an appellee at the writ stage in the Supreme Court used to have to ask to be notified about the writ panel hearing. A change in Rule 5:17(j)(4) requires automatic notice to counsel for the appellee. Emmert reported that appellee notice of writ panel hearings has been the practice since last year.
  • Amicus briefs now will be permitted in cases arising from the original jurisdiction of the two appellate courts, under changes in Rules 5:30(a) and 5A:23(a). Currently, amicus briefs are allowed only in appeals.
  • An addition to Rule 5:18(b) will require that a brief in opposition at the writ stage must be signed by appellee’s counsel. The rules currently omit such a requirement.
  • Changes in Rules 5:9(b) and 5A:6(d)(4) allow for the possibility that an appellant has already received a trial transcript, but has not yet filed it with the applicable court.

No more docs in a box

A separate series of rule changes reflects the diminishing need for paper copies of everything filed with the appellate courts.

The courts still will need stacks of paper when you file briefs and transcripts, but the rule amendments will eliminate the need to serve a box full of copies on your opponents.

Opposing parties now will be served electronically. They can print their own copies if they want to hold your advocacy in their hands.

Starting in July, appellants will have to file 10 paper copies of their briefs and only three copies of their appendices. The current rules call for 10 or 15 copies of the appendices.

In the Court of Appeals, the change will require only four paper copies of the briefs and four copies of the appendix.

The penalties for failing to heed the forms of briefs are now explicit. Rules 5:6(c) and 5A:4(c) will state that, if an attorney fails to correct a non-compliant document after notice by the clerk, the case may be dismissed.

The typeface requirement has not changed. Briefs must be in 14-point type using Courier, Arial or Verdana font.

Another rule change will peg the page limit for amicus briefs to the page limit of the brief being supported by the amicus.

Email addresses now are required in the signature block for appellate court filings. The rules also cite technical details for filing.

The new rules can be found on the Supreme Court’s website at

Comment sought on SCC appeal rule changes

The Supreme Court is considering changes in Rule 5:21(a) governing appeals of right to the court from the State Corporation Commission.

The revisions appear largely designed to improve clarity.

A link to the proposed changes is at Comments are due to the clerk by June 15.

Change would affect lawyer reinstatement

The Virginia State Bar is asking for comments on proposals for changing the reinstatement process used by lawyers hoping to regain their law licenses after revocation.

Currently, petitions for reinstatement are filed with the Supreme Court. The change would have petitions filed at the clerk of the VSB disciplinary system.

The change would clean up the rules for the process, consolidating the threshold requirements in one subparagraph.

Those threshold requirements include:

  • Sixty hours of continuing legal education
  • A score of 85 or higher on the Multistate Professional Responsibility Examination
  • Reimbursement of the Clients’ Protection Fund for any payments
  • Reimbursement for any receivership payments
  • Payment of prior costs assessed by the VSB

The proposed amendments would acknowledge the reality that judgment on a petitioner’s “good and honest demeanor and good moral character” and “fitness to practice law” can only be made after a hearing.

The suggested changes provide for electronic notices instead of mailed notices to the membership.

One particularly helpful change would remove a reference to an unpublished 1984 Virginia Supreme Court opinion for the 10 factors to be considered and, instead, would set out those factors in the rule itself.

The April 1 notice marks the second publication of proposed amendments to the reinstatement rules. Comments on the first proposed revision were due Oct. 30.

This time, comments are due at the VSB by May 15.

Amendments affecting lawyer discipline

An earlier deadline – May 4 – is set for comments on two proposed changes in the rules for attorney discipline.

One change would remove an unintentional inconsistency that could bar the VSB from charging a foreign lawyer with engaging in the unauthorized practice of law in Virginia.

Another change would tighten the requirement for a lawyer to self-report to the VSB when he or she has been disciplined elsewhere or convicted of a crime.

One lawyer claimed he self-reported by calling someone in the VSB’s membership department, which is separate from the VSB disciplinary system. Investigators could not determine whether that call was actually made.

The proposed change would require written notice of discipline or conviction of certain crimes to the clerk of the VSB disciplinary system within 60 days following entry of a final order.

Finally, the VSB is asking for comment on a change to clarify the responsibility of bar prosecutors to disclose information that could be helpful to a lawyer in trouble with the bar.

The obligation to make such disclosures appeared to conflict with other rules mandating confidentiality.

The proposed change would resolve the conflict in favor of disclosure to the lawyer facing a disciplinary proceeding.

Comments on that suggested change are due by May 15.