A WELCOME RULE CHANGE
(Posted July 8, 2019) Last week, the Supreme Court of Virginia amended the rulebook, adding two new rules and tweaking a few more. The changes are effective September 1. I’m very pleased to see the new provisions, which clear up a troubling ambiguity.
Four years ago, I posted an essay on what jurisdiction remains in the circuit court when one party appeals. In my experience, lawyers and judges had imperfect understanding of how the docketing of an appeal affects the respective courts’ powers to act.
Now we have clear guidance. New Rule 1:1B sets out how the filing of a notice of appeal alters the courts’ powers. It confirms that the appellate court acquires jurisdiction with the filing of a notice of appeal – and not the petition for appeal, which had been the rule back in the 1980s. The trial court still has the authority to act in certain matters, such as setting an appeal bond, enforcing the final order if there’s no such bond, and deciding motions to stay.
Importantly, the trial court retains the authority to modify, suspend, or vacate a final order for a full 21 days, even if an aggrieved party notes an appeal on Day 12. If the trial court vacates the order within that 21-day period, then the notice of appeal fizzles into nothingness, and any aggrieved party must file a new notice after the eventual final judgment. In contrast, a timely order modifying or suspending the final judgment won’t require a new notice of appeal.
Rule 1:1C contains comparable provisions for interlocutory appeals. We’ll start with petitions for review of injunction orders under Code §8.01-626. There, the appellate court gets full control over the part of the case thus appealed, but the trial court still can act in any unappealed portion, absent a formal stay. In other interlocutory appeals, such as certified questions, the trial court can press on with the case unless one court or the other issues a stay.
But that’s not all, folks. The court also:
- Amends the uniform pretrial scheduling order to change from 15 to 30 days before trial the deadline to designate portions of depositions to be used at trial in lieu of live testimony. The 2018 Boyd Graves Conference recommended this change.
- Adds a sentence at the end of Rule 3:20, carrying out the statutory change allowing depositions in summary-judgment motions in certain business litigation.
- In inmate filings, eliminates the requirement that the inmate pay for first-class postage.
- Requires an appellee in the Court of Appeals to list assignments of cross-error when designating the appendix contents. This also carries out a Boyd Graves recommendation.
That, you will appreciate, is quite a haul. For trial practitioners, the most significant changes in this order are those relating to summary judgment and de bene esse depositions. But for appellate lawyers, this is a signal day for the end of the dual-jurisdiction conundrum and for making the process of designations in the CAV fairer.
NEW RULES LOOM
(Posted April 19, 2019) In the past 24 hours, two courts announced rule changes. Yesterday the Supreme Court of Virginia created a new Part Eleven of the rules, effective June 17. The new rules are the court’s response to the public-access problem identified in The Daily Press v. OES (2017). When the legislature started making noises last year about stepping in, the court preemptively announced that it would create a new policy to govern public access to court documents. The court publicized a draft policy last year, and yesterday’s order is the final version.
Across the Potomac, SCOTUS has tinkered with briefing requirements. Starting in July, merits briefs must come in at 13,000 words or less, down from the current limit of 15,000. The Court decided against paring back reply briefs, leaving that limit at 6,000 words. The rule change also adds a requirement that parties identify any other cases directly related to the pending appeal. That helps the justices to identify any possible conflicts.
The federal courts of appeal have already implemented the shorter briefing limit. I recall well the scene a few years ago when that proposed change was pending. At the annual meeting of the Council of Appellate Lawyers, an ABA appellate body, lawyer after lawyer railed against the proposed reduction.
I kept my opinion to myself that day, but here it is for you to see: You guys are nuts. Why are you lobbying for the right to file long briefs? The “consumers” hate those.
It’s true: Ask any appellate jurist what she thinks about the briefs she gets, and the first answer will be, “They’re too long.” If you’ve drafted a brief and you’re having trouble trimming it down to the page limit, you aren’t trying hard enough. You’re probably also engaging in defensive lawyering, throwing in any potentially winning argument for fear of leaving a case-winner on the table.
I implore you to heed me on this: You cannot make a strong argument better by adding a weaker one after it. The weak one just diminishes the strength of the good one. I assure you that I can do more damage to my adversary’s position by filing a ten-page brief than I could with a 30-pager. If that sounds counter-intuitive to you, I urge you to rethink your assumptions.
Many years ago, the Supreme Court of Virginia shortened the briefs it had to “consume.” It did so, not by changing the page limits, but by increasing the required type size from 12-point to 14-point. I’m told that then-Justice Agee suggested this after noting that federal briefing rules require 14-point. The court was only too happy to embrace this change, which required lawyers to be more concise without taking any pages away.
In case you’re getting worried, I can report that I’ve heard no suggestion that the SCV will revise page limits downward in the near future.
SCV POSTS NEW RULE FOR COMMENT
(Posted September 10, 2018) Have you ever wanted to have input on the Rules of Court? If so, here’s your chance. The Supreme Court has announced that it’s considering some rule changes to address a thorny area of appellate jurisprudence. Here’s a link to the announcement, with the text of the proposed changes. The purpose of the new provision is to define the trial and appellate courts’ jurisdictional boundaries once a party notes an appeal. It provides for concurrent jurisdiction if a party notes an appeal before the trial court loses control (21 days after final judgment), and some residual jurisdiction for the trial court thereafter. If a trial court vacates a final order after a notice of appeal hits the clerk’s office, that moots the appeal. (Note well that that’s not true if the court merely suspends or modifies the final order.) Three years ago, I posted an essay on this very topic. That essay pointed out that the caselaw has been inconsistent on this point. Long ago, it took a petition for appeal to divest the trial court of jurisdiction. More recently, without any explanation, the boundary changed to the notice of appeal. This proposed rule change would be very helpful, in my opinion, to end the uncertainty that lingered after that change. I plan to study the language carefully before sending my comments. You can and should do the same. Don’t be shy; the court wants to hear from you on this proposed change. One last point: This proposal comes on the heels of the recent rule change that defines finality. These are two excellent means of better publicizing some relatively arcane appellate principles, making it easier for occasional users to navigate the seas of appeals.
FINALITY GETS A FACELIFT – ANALYSIS OF NEW RULE 1:1
(Posted August 31, 2018) Lawyers facing tricky finality issues have in the past had to comb through the annals of Virginia Reports to figure out whether a given order is final and appealable or not. Yesterday, the Supreme Court made our job a bit easier, promulgating significant changes to Rule 1:1. This is major news in the Virginia appellate world, so let’s take a moment to explore the new provisions.
The current rule lays down the 21-day rule: “All final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.” There’s an exception listed for criminal appeals. The rule concludes with a statement that the date of entry is the date on which the judge physically or electronically signs it. (This means that a judge can’t deprive you of an appeal by entering a final order “nunc pro tunc as of three months ago.”)
That part of the rule is essentially unchanged; it simply becomes subsection (a) of the revised rule. The juicy stuff starts with part (b). There, the court incorporates into its rules the long-standing definition of a final order: “if it disposes of the entire matter before the court, including all claim(s) and all cause(s) of action against all parties, gives all the relief contemplated, and leaves nothing to be done by the court except the ministerial execution of the court’s judgment, order or decree.”
There are plenty of instances where a trial judge has entered what he believes for all the world is a final order, but isn’t. No matter how prominently the order states that it’s final – no matter how much bolding and underlining there is – if it doesn’t meet this definition, then it isn’t final. This rule doesn’t alter the definition, but it makes it harder for judges and lawyers to miss.
New subsection (c) contains a surprise, in that it overrules some fairly long-standing precedent on a particular finality problem. In Gillespie v. Coleman, 98 Va. 276 (1900), the court evaluated an order that sustained a demurrer to the plaintiff’s suit, but didn’t formally dismiss the case. The judges (that’s what they were called back then) of the Supreme Court ruled that “The sustaining or overruling of a demurrer to a declaration is not final. To make it final in the former case, there must be a judgment of dismissal.” 98 Va. at 277. The court has reaffirmed this doctrine since then, notably in Bibber v. McCreary, 194 Va. 394 (1952).
This venerable doctrine isn’t quite dead yet, but as of yesterday, it’s in hospice care. The new Rule 1:1(c) states that henceforth, an order sustaining a demurrer without leave to amend is final even without language dismissing the lawsuit. And when a trial court sustains a demurrer but grants leave to amend, that creates finality if the plaintiff doesn’t amend by the stated deadline. (This leaves one pregnant question: If the plaintiff has, say, 14 days to amend, but doesn’t do so, do appellate deadlines start ticking on the date of the order, or on day 15? By far the safer practice is to regard the earlier date as the trigger, though this rule doesn’t expressly address the question.)
In new subsection (d), pleas in bar and summary-judgment orders get the same treatment as demurrers. Those are final even if the court doesn’t go on to grant judgment for a given party. Note that where a court sustains a plea or grants summary judgment as to one of multiple claims, leaving those other claims to be adjudicated, the order still isn’t appealable until the court concludes the case entirely. The only exception to that is the partial-final-judgment rule, involving claims as to multiple parties. That’s Rule 1:2.
Finally, new subsection (e) states that merely granting a motion to strike is insufficient to dispose of a claim unless the order specifies judgment for a party. In that one, the nonmovant gets at least partial succor.
Yesterday’s order also contains two very minor changes. The court retitles Rule 1:11 to “Motion to Strike the Evidence.” The previous title was “Striking the Evidence.” And the court amends a single clause in Rule 3:20, dealing with summary judgment. The previous wording allowed a trial court to enter judgment in a party’s favor when it found that a party was entitled to relief. The new provision empowers the court to grant the motion, reflecting that summary judgment sometimes is appropriate for less than the full claim.
In all, this set of rule changes isn’t revolutionary, except for the reversal of Gillespie and Bibber. Mostly it just sets out what the law of finality has long held. But a rule is much easier to spot than dusty old precedent from the McKinley era, so this new visibility is a good thing.
One last point: Why are Gillespie and Bibber in hospice and not in the morgue already? Because the new rule has an effective date of November 1. That delay results from a mandate in Code §8.01-3(B), which states that new rules don’t take effect for 60 days.
UPDATE: RULE CHANGE OFFERS ONLY PARTIAL RELIEF
(Posted June 5, 2017) Last week I mentioned that the Supreme Court has amended the rules relating to the signature requirement on pleadings. The new rule, which takes effect August 1, gives litigants a means to get leave to correct a defective signature, with the curative action’s relating back to the original filing date. I felt then, and I continue to feel, that this is a welcome course correction.
I have a terrific set of readers, and one of them wrote to me over the weekend to point out something that I had missed: Two important aspects of the rule only apply to pleadings filed in circuit courts. If you practice in GDC or JDR, be warned that you don’t get all of the new protection.
Here’s the text of subsection (d) of new Rule 1:5A:
Statute of Limitations Governed by Statute. If a complaint filed commencing a civil action – as provided in Rule 3:2(a) – is dismissed because it was signed by a person who is not authorized to practice law in Virginia, the statute of limitations for refiling of any claims asserted therein shall be computed in light of the time the action was pending as required by Virginia Code § 8.0 1-229(E)(1).
Rule 3:2 describes the process for filing suit in circuit courts. Its parallel in general district courts, Rule 7B:4, specifies that a plaintiff can sue “by warrant, summons or complaint.” In JDR, Rule 8:3 requires a petition, not a complaint, to initiate legal proceedings. Because of the express reference to Rule 3:2, it appears that the tolling provision in the new rule doesn’t help litigants and lawyers in GDC or JDR.
I hasten to add that other provisions in the new rule contain relation-back provisions, so even GDC/JDR litigants who amend successfully while the case is alive are protected. But the tolling effect of a dismissed action only applies to actions filed under Rule 3:2 – that is, in circuit. If you’re in GDC or JDR and hope to get the benefit of this tolling provision, please note that you won’t get it. The only way to proceed safely is to seek leave to amend during the pendency of your existing lawsuit.
In the same vein, the protection of subsection (e) of the new rule, which covers defectively signed notices of appeal, expressly applies only to appeals from circuit, not GDC/JDR:
Notices of Appeal. If a notice of appeal from the circuit court is filed with only the signature of an attorney or other purported representative who is not then authorized to practice law in the Commonwealth, a later notice of appeal in the same proceeding on behalf of the same party or parties and relating to the same judgment or order-if properly executed by an attorney qualified to practice law in Virginia, and filed within 90 days after the original-shall relate back to the date of filing of the original notice of appeal.
In this context, the new rule doesn’t apply at all in the lower courts, so aggrieved litigants have to get it right the first time.
NEW RULE CHANGE SOFTENS SIGNATURE REQUIREMENT
(Posted June 2, 2017) The Supreme Court has amended several rules of court. The changes will take effect on August 1. The only one that affects appellate practice – though it will have a noticeable impact on trial practice, too – is this new rule, relating to authorized signatures on pleadings.
Right now, the signature requirement is draconian. When a litigant or lawyer blows it – for example, where foreign counsel only, and not a Virginia attorney, signs a pleading – the pleading is a nullity. See Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279 (2002) for a harsh example. There, an attorney admitted pro hac vice signed and filed a notice of appeal. When his “team” discovered the problem, they filed an amended notice, signed by local counsel. The justices held that the original notice was a nullity and the defect could not be cured by an amendment, so they dismissed the appeal. There are other victims on this bloody trail: for example, Kone v. Wilson in 2006 and Nerri v. Adu-Gyamfi in 2005.
Starting August 1, new Rule 1:5A gives a court discretion to allow a litigant or attorney to correct the error, with the amendment’s relating back to the original filing date. Subsection (d) specifies that if a court dismisses a suit for an improper signature, the tolling provision of Code §8.01-229(E)(1) applies, so the plaintiff can quickly refile. That takes care of the problems in Kone and Nerri. And subsection (e) expressly addresses the problem in Wellmore Coal, allowing a corrected notice of appeal to be filed within 90 days, with the amendment also relating back.
I’ll add one word of caution: Like any other amendment, you must get leave of court to do this. An amendment that’s filed without leave is more of a problem than just being a legal nullity; the justices have ruled that a court doesn’t acquire jurisdiction to adjudicate an amended pleading that’s filed without leave. Mechtensimer v. Wilson, 246 Va. 121, 122-23 (1993). This new rule offers a lifeline for litigants or lawyers who botch a signature requirement, but there’s a specific way to take advantage of the lifeline.
No one has asked me for my opinion, but I’ll offer it anyway: This is a welcome change. Any process that allows an appeal to be decided on the merits instead of by procedural default is good by me. In an era where an appalling percentage of appeals die premature deaths, it’s nice to have a procedural mechanism to reduce that toll somewhat.
THE STATUTE BEHIND THE NEW RULE 5:17(a) PROVISION
(Posted March 29, 2017) Last week I mentioned the impending change to Rule 5:17(a) on the deadline for filing petitions for appeal. The current rule matches the current statute, which requires that petitions be filed no later than three months after the final-judgment date below. That sometimes generates headaches for lawyers when, for example, the final order comes down March 31 and June only has 30 days.
The new rule converts the deadline to an unambiguous 90 days, which works no matter where you fall on the calendar. In most cases, that gives the appellant a day or two fewer to file, but that difference is negligible and is greatly offset by the simplicity of the new rule.
The brand-new statute that enabled this change did more than just convert three months to 90 days. Starting on July 1, it eliminates a glaring difference between civil and criminal appeals. The Supreme Court has the ability, in order to attain the ends of justice, to grant a 30-day extension of the deadline, but that power exists only in criminal cases. Right now, no matter how good your excuse is, if you miss the filing deadline in a civil appeal, there’s nothing the justices can do for you; you’ve missed a jurisdictional deadline and you should swallow hard before calling your client (and maybe your carrier).
The new statutory change eliminates that criminal-appeals-only limitation, so starting in July, if the justices find a good enough reason to do so, they’ll be able to extend the deadline in civil appeals, too. But be careful: A bad hair day probably won’t get it done against an ends-of-justice standard. You need a real reason, probably one that takes the matter out of your control.
The ends-of-justice standard already exists in Rule 5:25, the contemporaneous-objection rule, so the new provision already has an existing body of interpretive caselaw. I don’t have any inside story on how the justices will view, for example, a consent motion to extend due to a moderate schedule conflict. The best practice is never to play around with a deadline in the first place: File early, and then go get a good night’s sleep.
RULE CHANGES LOOM IN STATE APPELLATE COURTS
(Posted March 24, 2017) The Supreme Court of Virginia has issued three orders that amend appellate rules, effective in the near future.
One order reduces the number of paper copies of the appendix that must be filed in the Court of Appeals, from four copies to three.
The second order reduces the number of paper copies of merits briefs that must be filed in the Supreme Court, from ten copies to three, and in the Court of Appeals, from four copies to three.
The third order brings the rules into compliance with some legislative changes that passed this year. The most significant change is to modify the deadline for filing a petition for appeal. The current Rule 5:17(a)(1) states that the deadline is three months after entry of the judgment order; the new rule converts that to 90 days.
That may not sound like a big deal, but it is. Counting days is easier than counting months. That may sound counter-intuitive, but consider this example: Suppose the final trial-court order comes down November 30. If the due date is three months, that’s December 30, January 30, … February 30? Does that mean you get until March 2?
No, you don’t; or at least, you haven’t. Up to now, the court has regarded the last day of February as the deadline day when the clock starts ticking on November 30.
This change is welcome in my eyes; it eliminates the possibility of an ambiguity. In fairness to the justices, I believe they recognized this ambiguity and they would have changed it to 90 days long ago; but the three-month deadline is in a statute (8.01-671) that the court isn’t free to ignore.
The first two orders are up on the court’s website, and you can see them by clicking on the links above. They take effect May 1. The third one isn’t up yet, because it just came down today. If you’d like a copy and you can’t wait until next week to read it, drop me a line and I’ll forward it to you. This one takes effect July 1, the effective date of the statutory amendment.
Incidentally, for those of you who felt cheated because you didn’t get until March 2, relax: from November 30 to February 28 is exactly 90 days.
NOTE ON RECENT RULE CHANGES
(Posted December 20, 2016) On November 4, I posted an essay about two new rule changes in the state appellate courts. Here’s a follow-up, addressing two more that may affect your practice.
The first one is old news that I had missed: on November 1, the court moved Rule 5:8A, the partial-final-judgment rule, to Part 1, where it now resides as Rule 1:2. There was once a Rule 1:2 that dealt with venue in criminal cases, but that rule was relocated to Part 3A almost ten years ago, and that “street address” in the rules had remained vacant ever since. As far as I can tell, there’s no change in the wording of the rule; just a new number.
I will confess to at least some puzzlement about this change. It seems from the context of the rule that it should apply only to civil cases that are pending in the circuit court. But the Supreme Court moved the PFJ rule to Part 1, containing “General Rules Applicable to All Proceedings,” instead of Part 3, “Practice and Procedure in Civil Actions.”
Part 1 applies, at least in theory, to every kind of litigation, civil and criminal, at every level of the court system. As phrased, the rule doesn’t expressly exclude suits filed in general district court, which can be appealed on to circuit. The benches will now be left to determine whether a GDC judge (or JDR, or maybe even the Workers’ Comp Commission) can enter a partial final judgment, thus generating an immediate right of appeal.
I believe that the justices could have prevented any ambiguity by placing the rule in Part 3 instead, where it seems to belong. Still, that’s probably a stylistic quibble at most, and I won’t get worked up over it. And let’s face it: the rules aren’t exactly organized in a meticulous way. If they were, for example, Rule 1:18 and the accompanying pretrial schedule order would be in Part 3, where they belong with the other rules for civil cases. Just remember to review the rules early and often in your practice.
The next change is a whopper, at least for those of us who care about minutiae like typography: The chains have been shattered! You are no longer constrained to use one of only three distasteful options when it comes to fonts for your appellate pleadings.
Last Thursday, without any fuss, the court quietly amended Rule 5:6, “Forms of Briefs and Other Papers,” to remove the requirement that Supreme Court briefs must be printed in Arial, Courier, or Verdana. Instead, the court has published on its website a “List of Acceptable Fonts” with a whopping twelve font names.
Until now, when I had only those three choices, I used Verdana. Courier just looks awful to me – think a 1952 Smith-Corona – and between Arial and Verdana, the latter looks easier to read. Arial is “denser,” in that you can get more words onto a given page, so it was the default choice for lawyers with logorrhea, those for whom a 35-page limit is a formidable and painful constraint.
I invite you to click on the link for the acceptable-fonts list and see what looks good to you. I probably won’t stick with Verdana for my briefs, because I don’t like the italics – they don’t stand out sufficiently from roman letters. Right now I’m weighing the choice between Cambria and Constantia. If you’re among the crowd who think more words are better than fewer, you’ll go with good ol’ Times New Roman, which is the densest of the 12. (That being said, you should rethink your underlying assumption. Longer briefs are less persuasive than shorter ones.)
One last point: This change only applies in the Supreme Court of Virginia. Nothing has changed in the Court of Appeals. There, you can use any font you want, as long as you use at least 12-point type. (Here’s a secret hint from someone who files briefs for a living: Use 13-point. The judges aren’t getting any younger, and lamentable things happen to the eyesight of a person who’s hit the big five-oh. That includes most of the CAV.)
NEW RULES OF COURT AFFECT BONDS, AMICUS BRIEFS
(Posted November 4, 2016) Earlier this week, the Supreme Court quietly amended several Rules of Court. Two of those rule changes are appellate. One is simple: the court amends Rules 5:24 and 5A:17 to add the sentence, “The time for initially filing the appeal bond or letter of credit prescribed by Code § 8.01-676.1(B) is not jurisdictional under Code § 8.01-676.1(P).” I welcome this change.
The other amendment is a bit more complex. Beginning January 1, the procedure for filing amicus briefs will change. If you’re representing a proposed amicus, now you’ll need leave of court in all circumstances unless you represent the United States or the Commonwealth. In the past, amici could file without a formal motion as long as they had written consent of all parties; that procedure ends in 2017.
The new rule also clarifies the procedure when a proposed amicus isn’t supporting either side in the appeal. Such amici will have to file no later than the deadline for the appellant’s brief, and comply with the appellant’s briefing requirements.
Finally, the new provision requires that before you file any appellate motion, you have to call the Bad Guys, see if they consent, and then tell the court what their answer is. The inclusion of this requirement in Rule 5:30 is technically redundant, since the same requirement exists in Rule 5:4, dealing with motions practice. But this protocol is good form, so I certainly welcome the reminder.
There are a few quirks about the new rule that I should mention. First, it eliminates the practice of parties’ agreeing to execute and file a global consent for any and all amicus briefs. I’ve used this procedure in the past on a couple of occasions, and it made life much easier for amici on both sides of the appeal. I sense that the court wants to reserve to itself the control of which amicus briefs may be filed; under the previous rule, the court could be forced to entertain an amicus brief based solely on the consent of the parties.
Second, this rule change only affects practice in the Supreme Court. There is no companion rule change for Rule 5A:23, affecting practice in the Court of Appeals. That means that the procedures used in the two courts will be different, which is something I would prefer didn’t happen. There may well be a companion rule change for the CAV soon; I’ll be on the lookout for that.
Third, the rule continues the existing provision that the court may request an amicus brief at any time. The old rule stated that when the court made such a request, you didn’t have to get leave of court, but for some reason, that sensible exemption is deleted. Now you have to file a motion for leave even if the court has asked you to file. That seems odd to me, and I’m not sure why the court made this change.
I’ll mention one other point. I noted above that a proposed amicus who supports neither party needs to comply with the deadline that applies to the appellant. As I perceive it, this will effectively end the possibility that such an amicus brief will be filed at the petition stage. That’s because, in order to comply with the requirements for the petition for appeal, the amicus brief must include, among other things, the assignments of error. Especially with an uncooperative appellant, no amicus will be able to know what those assignments are until he or she reads the petition. If the appellant files on the deadline day, then the amicus cannot possibly comply with the deadline. This may have been intentional – a desire to cut back on petition-stage amicus briefs – or it might be an unintended consequence. Either way, it probably affects a tiny number of amicus briefs, since most amici come in supporting one party or the other.
NEW FEDERAL RULE MANDATES BREVITY
(Posted October 4, 2016) Do you suffer from logorrhea? When it comes to briefwriting, do you find that you just can’t stop? Do you believe you can be twice as persuasive in forty pages as you can in twenty? If so, then according to Garrison Keillor, there’s a support group for you; it’s called On-and-On-Anon.
If all this describes you, then page and word limits are your nemeses. Appellate courts are notorious for setting page limits that force you to cut yourself off before your eloquence reaches its apex.
Well, get ready for bad news: by pending rule change, the federal page limits are getting shorter, as of December 1. The old word limits (14,000 words for principal briefs; 7,000 for reply briefs) were based on the assumption of 280 words per page. The courts will now apply a 260-words-per-page protocol, so the new limits will be 13,000 and 6,500, respectively. Look at it this way: you get the same number of presumptive pages – 50 and 25, respectively. You just can’t cram as many words onto each page by ruses such as creative use of fonts and single-spaced footnotes.
In reality, most appellate lawyers have long abandoned page limits, finding the word counts to be more liberal. No more.
These changes didn’t come without stern opposition from a surprising source: appellate lawyers themselves. A story in today’s New York Times describes efforts by nothing less than the president of the American Academy of Appellate Lawyers to stop the reduction. I also recall discussion of this as a proposed rule at last year’s ABA Appellate Summit, when some lawyers fumed about the potential loss of pages, while the rest of us kept our mouths shut.
The NYT story contains the best counter-point to the opposition: longer briefs are less persuasive. In most appeals, I can inflict more damage in ten pages than I can in twenty. There’s one, and only one, use for string cites, but somehow they find their way into brief after brief, clogging the narrative and chasing the reader’s attention away.
Look, I know that some appeals – and some case areas – are complex, and perhaps you need to spend more time and pages explaining things. In the truly complicated appeal, you should be able to make out a case for extra briefing space. (Don’t try that with the SCV, though; that court relaxes page limits very seldom.) But I agree with the appellate jurists quoted in the NYT story: most briefs are too long.
In his wonderful book, The Winning Brief, Bryan Garner urges that you “strive to halve your page limits.” That may seem unthinkable – only 7,000 words for a merits brief? Only 18 pages for an SCV petition for appeal? – but it’s excellent advice. Yes, it’ll take effort to trim it down, to pare extraneous material, to exercise ruthless triage in selecting issues; but it’s worth it when doing so enhances the persuasive force of your brief.
One last point: lawyers who file page-limits briefs are often practicing a form of defensive lawyering. They fear that if they leave out a so-so issue, an arguably on-point citation, an argument with a theoretical chance to win, they could get sued. This is a form of cowardice, and it costs your client in the metric that matters most: the ability of your brief to actually persuade the reader.
IT’S RAINING RULE CHANGES[Posted April 13, 2015] For appellate rule geeks, Christmas comes in April, as the Supreme Court of Virginia showers us with a host of new and revised rules. The court announces the changes, all of which will take effect July 1, in four separate orders, each dated April 10. I’ll discuss the changes order-by-order.
Wholesale change to petitions for review (order 1)
The Supreme Court has always had a procedure for immediate review of injunctions, in Rule 5:17A, based on Code §8.01-626. The rule contains a procedure for very prompt review of injunctions by a Supreme Court justice. While the statute isn’t limited to review of temporary injunctions, the Supreme Court has heretofore taken the position that injunctions contained in final orders aren’t entitled to the expedited review.
That limitation vanishes as of July 1, at which point you’ll be able to obtain expedited review of all forms of injunctions. The new version of Rule 5:17A also comports with the court’s established practice of review by a three-justice panel, instead of a single justice as the existing rule provides.
There’s a wholly new Rule 5A:38 for comparable review of injunctions in the Court of Appeals. The statute has always empowered that court to consider such petitions, but before now, there was never a rule to explain the process.
This order carries out a recommendation of the Boyd Graves Conference.
Digital appellate record (order 2)
There’ll be a new Rule 5:13A (and a companion new Rule 5A:10A in the CAV) that recognizes the emerging use of case imaging systems in trial courts that have arranged for e-filing of pleadings and other documents. Those courts will now be able to prepare a digital appellate record, instead of a paper one, for transmission to the SCV or CAV Clerk when a litigant notes an appeal. The order that carries this out also contains a few minor alterations, such as replacing the word papers with documents in appropriate contexts.
Proposals from the Virginia Bar Association (order 3)
Early last year, the VBA’s Appellate Practice Section proposed to the Supreme Court a number of rule changes, ranging across the rulebook. The court has made most of those changes, though it – alas! – declined to adopt one that I had pushed, to allow briefs to be printed on both sides of the page, to save paper. There are no tree-huggers on the court – or at least not enough to make a majority.
But still, this order makes a number of sensible changes to streamline procedures. Here are the highlights:
Citation of supplemental authorities. New Rules 5:6A and 5A:4A now permit the parties to bring to the court’s attention “pertinent and significant authorities” that they discover after briefing or oral argument. The process is purloined from FRAP 28(j), and provides for very limited discussion of the new authority. Either court may reject the filing if it “unfairly expand[s] the scope of the arguments on brief.” In addition, if you should have previously briefed it, the courts might disregard the new material. The best use of this provision is a newly published treatise or a new judicial decision that was handed down after your briefing or argument.
Transcript notices. Current Rules 5:9(b) and 5A:6(d)(4) require that you state whether you’ve already filed a transcript, or have ordered one. A new tweak adds a third possibility, where you already have such a transcript in your possession.
Extension, modification, or reversal. The current Rules 5:17(c)(1) and 5A:12(c)(1) require that in your assignments of error, you have to identify the specific lower-court error you’re raising. What if the lower court’s ruling comports perfectly with existing law, but you’re arguing for a reversal of that law? The new provision expressly permits you to do that.
Oral-argument notices. Before last year, the Chief Staff Attorney notified counsel for the appellant of the date for oral argument before a writ panel. Counsel for the appellee had to ask to be notified. The new Rule 5:17(j)(4) makes that second notification automatic. Interestingly, the CSA anticipated this change last year; when it began to send out oral-argument notices electronically, she started adding the appellee’s counsel. When I asked about that procedure change last year, I was told, “It’s just easier this way.” The new rule provision brings the rulebook into line with existing practice.
Brief in opp signatures. An anomaly in the current rules requires an appellant to sign the petition for appeal, but doesn’t require the appellee to sign the brief in opposition. A new sentence at the end of Rule 5:18(b) now makes both signatures required.
Petition-stage reply briefs. A minor amendment to Rule 5:19(b) addresses what I’ve always felt was an unfair provision in the current rules. Most appellants don’t file reply briefs, because they waive an extremely valuable oral argument. But if the appellee assigns cross-error, the appellant may file a reply directed only to the cross-error, and still get the right to be heard orally.
Right now, the deadline for filing that reply is seven days. That’s calendar days, not business days; and you don’t get an extension for service by mailing. This can result in a sudden emergency for appellants: The appellee files a brief in opp on a Friday that contains an enormous cross-error issue. She mails the BIO on Friday; Monday is a holiday; and the poor appellant’s lawyer gets to read the brief for the first time on Tuesday, with a Friday filing deadline.
Now, I often solve this problem by agreeing with my opponents to exchange electronic versions of brief on the date of filing. This eliminates the omigod factor of the previous paragraph. But absent such an arrangement, the VBA Appellate folks felt it was only fair to extend the reply deadline from 7 to 14 days; this new order makes just that change.
Petitions for rehearing. The current rules contain two separate entries for petitions for rehearing after the denial of a writ – Rules 5:20 and 5:20A. Those two rules result in a great deal of confusion; I get plenty of phone calls from lawyers who have trouble with them, and I’m confident that the Clerk’s Office gets more than I do. After July 1, there’ll only be one rule – Rule 5:20A is rescinded – and the process should be a lot more uniform. The Readers Digest version of the most confusing element now: You get 15 pages and can file a paper brief if you’re an inmate, or if you’ve obtained special dispensation from the court. (I’ve never heard of anyone getting that.) You get ten pages and have to e-file if you’re anyone else.
Amicus briefs in OJ proceedings. Right now, an amicus curiae can only file a brief in the course of an appeal. But both appellate courts entertain some proceedings that invoke original jurisdiction, such as habeas corpus or actual-innocence petitions. New provisions in Rules 5:30(a) and 5A:23(a) will now permit the filing of amicus briefs in those OJ actions.
Changes in briefs and appendices (order 4)
I’ve known for years that this day was coming. If you own stock in a brief-printing company, you may need to take a hard look at how you bill for your services. The court is significantly changing the means of filing and serving briefs and appendices in cases that it hears on the merits.
Right now, once the justices grant a writ, an appellant has to file 15 copies of his brief and either 10 or 15 copies of the appendix. He also has to serve on the Bad Guys three copies of the brief and two of the appendix. Those figures drop under new provisions in Rule 5:26(e) and 5:32(a)(3). Beginning in July, an appellant still files 10 paper copies of the brief, but now serves zero; service will be all-electronic. That goes for appendices, too, with a sharper drop-off; instead of filing ten and serving two, now the appellant files three and serves none.
This matters a great deal for those printing companies whose billing model is built on a per-page basis. They make a lot of money when chicken-hearted lawyers grossly over-designate, in an effort to get everything that’s even arguably helpful into the appendix. Those folks often wind up with a 2,000 page appendix, of which perhaps 175 pages are truly relevant. The sharp reduction in the number of appendix pages that will be printed, bound, and filed is the significant news in this rule change.
The news is even darker in the Court of Appeals: the new Rule 5A:19(f) reduces paper filings of briefs to just four copies. You also file and serve one electronic copy. You also have to file four paper copies of the appendix – down from the current seven – but service of that document will be all-electronic, too.
Both courts get a new provision that states that if the Clerk directs you to correct an erroneous filing, but you don’t do that in time, your appeal can be dismissed. The new provisions are in Rules 5:6(c) and 5A:4(c).
There’s a notable change in Rule 5:26(b) that eliminates another anomaly in the current rules. Those rules permit amicus briefs at any stage of the case, including rehearing, but contain an unchanging page limit of 50 pages – even if the amicus brief supports a ten-page petition for rehearing. Starting in July, the rule will limit the amicus to the number of pages that its supported party gets. (This was another of the changes recommended by the VBA Appellate folks.)
There’s a minor change – again, in both courts – that reflects changes in technology over the past 25 years. The rules now require a signature block that contains your signature, plus your State Bar number, “address, telephone number, facsimile number (if any), and email address (if any).” The new changes will delete the second “(if any),” reflecting the fact that nowadays just about everyone has an e-mail address. Indeed, I believe that after July 1, if you don’t already have an e-address, you’ll need to get one in order to file anything.
Relax; if you’re a technophobe, you can use your secretary’s email account.
I do wonder how long the requirement for a fax number will stick around. I know that many folks still use fax machines, but I suspect this technology will be going the way of the telegram before long. We’ll know for sure when the court deletes the fax number entirely from the signature block.
Finally, the new rules contain technical information for e-filing, including what to do if there’s a technical problem at the receiving end. (If the problem is at your end, you’re probably out of luck; the new rules provide no succor for such situations.) The court also will also set up a website that lists e-filing guidelines. Those will, I’m sure, be enormously useful to those persons, smarter than me at such things, who actually work the magic of filing my petitions and briefs. I’ll list the URL for the website here, although as I type this, the site isn’t live yet:
NEW RULES – HERE, AND ON THE HORIZON[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.
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 changeVirginia 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.
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.
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.
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.
New Rules of The Supreme Court of Virginia
Effective July 1, 2010, new rules took effect for the Supreme Court of Virginia.
Click here for a two-part essay by L. Steven Emmert that highlights some of the more important new rules and outlines some of the new procedures that now apply. These essays originally appeared in the VBA News Journal and are used here with the permission of the Virginia Bar Association.
LARGER TYPE REQUIRED IN SCV BRIEFS
Are you still trying to file Supreme Court briefs in 12-point type? Times New Roman? Well, you need to catch up with the appellate rules, which changed on February 1, 2008 to require a minimum 14-point font, and either Courier, Verdana, or Arial type. The page limits for briefs have not changed, so this is a none-too-subtle means of forcibly shortening briefs.
Note that this change only applies in the Supreme Court; Court of Appeals brief requirements have not changed (at least for now). The good news is that if you file a non-conforming brief (even on the deadline day), your appeal won’t get scuttled. But you will receive a notice from the Clerk, telling you to file a corrected brief that does comply. Now, if you filed one of those page-limit-stretchers using 12-point, then you have some ruthless editing to do, to ensure that you comply with the new requirements.
Here is a hyperlink to the new rule.
RULES, RULES, RULES
[Posted December 1, 2006] This week sees the institution of no fewer than three new rules of court. Two of those, amendments to the Federal Rules of Appellate Procedure, had been announced some time ago, and take effect today. The other is a wholesale revision of Virginia’s rules for pro hac vice admissions.
Today marks the institution of modifications to two federal rules relating to appellate courts. The more widely discussed is the change to FRAP 32.1, to create some semblance of uniformity among the circuits as they govern the citation of unpublished opinions. That rules states that the circuits may not “prohibit or restrict the citation of” unpublished opinions issued after January 1, 2007. This will drag some circuits, kicking and screaming, into a new era of more liberal citation rules.
I have previously posted a summary of the rules related to citation of unpublished opinions in the three appellate courts that sit in Virginia. There, I noted that the Fourth strongly disfavors such citations, but has permitted them under certain circumstances. The new provision applies not only in the Fourth Circuit, but in district courts within the Fourth, so trial practitioners should become familiar with both the federal rule and its local-rule counterpart.
One other observation: The Fourth adopts a new local rule that goes along with the FRAP amendment, but the court retains control over one key element, and you can reliably anticipate that it will exercise that control. The court has the right to decide for itself how much weight to assign to unpublished opinions. My best guess is that, accordingly, this rule change will wreak an almost imperceptible change on the way the Fourth conducts its affairs; appellate practitioners should not hurry out to find a host of new unpublished opinions to cite, on the assumption that today’s dawn heralds a sea change in Richmond.
The second FRAP change will not have much of an immediate impact, but when it finally does kick in in full force, it will dramatically change at least one aspect of federal appellate practice. That change is to authorize the circuits to adopt procedures for electronic filing of briefs and other papers in appeals.
If you’re a Luddite, and your VCR (still got one of those?) flashes “12:00” all day, don’t panic, yet. As noted above, the rule merely authorizes the circuits to adopt procedures for e-filing; it does not mandate such changes, and you do not need to start cramming on how to do so right now. The Fourth is still in the process of implementing and debugging its CM/ECF system (that’s Case Management/Electronic Case Filing, for the Luddite crowd), and probably won’t have that finished until some time in the spring of 2007; actual e-filing probably won’t even be authorized, much less mandated, for several months after that.
But in a year or so from now, the time for such expertise will draw nigh, and appellate attorneys who prefer not to dabble in the cyber-world will have no choice. Actually, there probably will be a choice for them; they will almost certainly be able to comply with the rules by using a reliable appellate consulting or brief printing company.
E-filing has been a part of state court appellate practice for almost two years now; both the Supreme Court and the Court of Appeals of Virginia have required that all rehearing petitions filed after January 1, 2005 be filed as a PDF attachment to an e-mail. I don’t know whether the Fourth’s procedure will be identical to that, but for what it’s worth, I have found e-filing to be easy and hassle-free. That won’t stop me from continuing to use a good consultant, but as I have expressed before, if you own stock in such a company, you might want to start gathering the villagers with pitchforks and torches; a development like this cannot be good news for these companies.
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The Supreme Court of Virginia wholly rewrites Rule 1A:4, effective February 1, 2007, in an order issued on Tuesday, November 28. The rule appears to address the circumstance in which out-of-state attorneys come into Virginia on a regular, but ostensibly pro hac vice, basis to argue cases here. There is apparently a concern in some quarters of the commonwealth that such attorneys are essentially engaging in the regular practice of law here.
The new rule greatly expands the processes required for pro hac vice admission, and creates a significant layer of bureaucracy that will (not so subtly) dissuade such a practice once the rule takes effect. The existing rule requires little more than a formal request of the trial court, accompanied by a pleasant smile. But starting in February, foreign attorneys must file a verified application, including his or her disciplinary status in all jurisdictions of regular bar admission, and pay a $250 per case fee. The application must be filed along with a motion signed by a Virginia attorney, and include “a proposed order granting or denying the motion” for the judge’s consideration. (I have been idly wondering why the Virginia lawyer would tender a draft order denying the motion, but the new rule doesn’t discuss that.) PHV appearances are limited to 12 per year; if the attorney tries to exceed that, the trial court is required to deny the request.
My take on this is as follows: I can certainly understand the concern that might arise if a given foreign lawyer routinely appears here, taking cases that would otherwise go to Virginia lawyers. My trial level practice has been almost exclusively in the Tidewater area, and I haven’t seen a significant number of such cases, but it might very well be a problem elsewhere. Nevertheless, I perceive some drawbacks to the new rule, starting with the size of the aforementioned bureaucracy. The complexity of this process might very well be designed to dissuade foreign attorneys from using the PHV procedures; as well, local clerks of court might view the whole thing as an unfunded mandate whereby they have to undertake a lot of effort in recordkeeping and administration, but they get no part of the $250 fee.
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Electronic Filing Lives On
As readers of this site know, the Supreme Court created, as a pilot program for calendar 2005, a requirement that all petitions for rehearing in the two state appellate courts be filed electronically, as PDF documents. The rule changes had a sunset provision, by which they were due to expire on December 31.
The court is apparently quite satisfied with the program, and has extended it indefinitely; the Rules of Court now contain permanent requirements for electronic filing of rehearing petitions. You can see the new rules here. Note that the only pleadings to which these rules will apply are rehearing petitions. You still need to file, for example, a petition for appeal in hard copy. There are exemptions from the requirement for prisoners proceeding pro se, and for those obtaining leave of court to file paper versions of their petitions. Presumably, a motion based on the fact that a given lawyer is a neo-Luddite may succeed, but probably not for much longer; the court expects today’s practitioners to keep up with technological changes.
It is entirely foreseeable to me that, in the near future, this program will be expanded to permit, or even require, electronic filing of all documents — petitions, briefs, motions, everything — that get submitted to the court. Some courts, including at least two federal courts in the Commonwealth of which I am aware, already provide for electronic filings of documents. You have been warned.
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Changes to Rules 5A:5, 5A:20, and 5A:21 take effect Aug. 15
The Supreme Court has announced changes to three rules affecting the Court of Appeals of Virginia. The text of the changes, which will take effect in August, may be viewed here.
More significantly, the entire “rule book” for the CAV is being considered for revision. That court has suggested wholesale changes to Part Five A, and has transmitted a report to the Supreme Court for its consideration. (The Supreme Court has the authority and the responsibility to make rules for the Court of Appeals.) When those proposed amendments become available, I will post them here.
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Newly Amended Rules on Petitions for Rehearing
The Supreme Court of Virginia has amended the rules relating to petitions for rehearings in that court and in the Court of Appeals, effective January 1, 2005. The effect of this rule change is to require that all such petitions be filed electronically. The changes have a sunset provision that terminates them on December 31, 2005, unless they are sooner extended. The court will in all probability evaluate the efficiency of these filings over the course of the year, conceivably with an eye toward extending the e-filing requirement to other (or perhaps all) documents filed with the court.
The rule changes affect only a small percentage of the courts’ caseload in this pilot program. The Supreme Court acted on just 383 petitions for rehearing in 2003, the last year for which full statistics are available. (The Court of Appeals does not publish statistics on the number of rehearing petitions it receives.) This contrasts with the roughly 3,000 matters filed with the Supreme Court Clerk annually. In the longer term, though, this rule change, if it portends the advent of a truly paperless filing system, would dramatically alter the way in which appeals are handled. It would also be very bad economic news for the printing companies upon which many appellate lawyers have come to rely for filings. Several courts, including at least one U.S. Court of Appeals (http://www.cobar.org/Docs/genorder102004.pdf) have already adopted voluntary or mandatory e-filing requirements, either as an adjunct to or a substitute for paper filings.
New Supreme Court Rule on Awards of Appellate Attorney’s Fees
The Supreme Court of Virginia has amended the Rules of Court to add a new provision relating to the award of attorney’s fees at the appellate level. The change, effective April 1, 2005, applies in any case in which attorney’s fees are awarded in the trial court pursuant to contract, statute, or other applicable law. If an appellant thereafter petitions for and fails to obtain a writ, the appellee may then (within 30 days of the date of the denial of the petition for appeal or for rehearing) apply to the trial court for an award of appellate attorney’s fees. The court’s directive, specifying that the trial court makes the award, is consistent with the procedure first established by the U.S. Supreme Court in Perkins v. Standard Oil, 399 U.S. 222, 90 S.Ct. 1989 (1970), and followed consistently in the U.S. Courts of Appeals in a wide variety of cases ever since. The trial court’s order is final, and can itself be appealed, whether appellate fees are awarded or not. The text of the rule changes may be found at the following site: http://www.courts.state.va.us/scv/amendments/122204_1_1a_5_20.pdf