[Posted November 22, 2010] Sensible appellate advocates know not to touch the language of assignments of error once the Supreme Court has granted a writ. But in a recent case, the court has signaled a tougher stance where litigants flout this often-stated rule.

In the past, when an appellant foolishly changed the wording of an assignment (perhaps out of ignorance of the court’s common-law rule) in his opening brief, the court has admonished the litigant, and then proceeded to analyze the case based on the original language. For example, in Hamilton Dev. Co. v. Broad Rock Club, 248 Va. 40 (1994), an appellant modified the language of one of its assignments. The court rebuked the change in this way:

The change that evolved during the appellate process in assignment of error No. 1 is obvious; such skewing of the language of the original assignment is not allowed.

Appeals are awarded based on assignments of error, a required part of every petition for appeal. Rule 5:17(c). The language of an assignment of error may not be changed, especially when the assignment is set forth in the order of this Court awarding the appeal. The only time when the wording of an assignment of error does not remain an integral part of the appeal is on the rare occasion when this Court, in an order, posits the issue to be debated, and that did not happen in this case.

That being said, the court then went on to analyze the case based on the language of the original assignment. 248 Va. at 44-45.

Seven years later, in Hudson v. Pillow, 261 Va. 296 (2001), an appellant made wholesale changes in its assignments after the grant of a writ. The court refused to consider wholly new issues raised, but it did consider the issues raised by one assignment that, although drastically altered in syntax, still presented essentially the same issue (sufficiency). 261 Va. at 301-02.

Soon thereafter, in White v. Commonwealth, 267 Va. 96 (2004), it happened again. Here’s what the court ruled this time:

The improper modification of an assignment of error, however, will not prevent the appellant from arguing and having his appeal considered on the issue actually asserted in the trial court and for which an appeal was granted, provided that he has adequately briefed that issue. See Hudson v. Pillow [citation deleted]. White has presented argument in his brief relevant to the issue whether he was in police custody at the time of his flight. Consequently, we will limit our consideration in this appeal to the narrow issue raised in White’s initial assignment of error, disregarding any argument on and expressing no opinion with respect to the additional issue interjected by the improper modification of that assignment of error in the opening brief.

267 Va. at 103. Did you notice the subtle approach there? The court won’t accept modified assignments, but it will consider the case based on your original assignments of error, as long as you’ve briefed that issue. It’s as though the modification itself would simply be disregarded, as long as you didn’t thereby give yourself an opportunity to brief a wholly separate argument.

In discussing this situation with lawyers over the past few years, I have generally given out the following advice, based on the White decision. First, don’t change the language of your assignments. Second, if you’ve already filed your brief and you didn’t know about Rule #1, you aren’t necessarily dead; it just means that the court will consider the case based on the original language. In short, it doesn’t hurt you to make the changes; it just doesn’t do you any good, so there’s no reason to alter the original language.

And that brings us to Landrum v. Chippenham and Johnston-Willis Medical Center, decided by unpublished order a couple of weeks ago. (I’ll post a copy of the order on the “SCV Unpublished Orders” page of the archives.) The appellant got a writ on five assignments of error, but in crafting the brief of appellant, the wording of the assignments didn’t seem quite good enough. Counsel for the appellant apparently didn’t know about Rule #1 (in fairness, it looks like the brief was prepared by out-of-state counsel appearing pro hac vice, although of course that doesn’t excuse the error), so the brief of appellant listed significantly different assignments than the petition for appeal had contained.

The appellees moved to strike four of the five assignments, contending that the changes “pose a serious dilemma to [appellees] regarding which assignments of error to address in their briefs.” They asked the court to bar all consideration of those four assignments. They then added an alternative request that the court consider only the assignments that were recited in the petition. The appellant, having read White v. Commonwealth, responded by moving for leave to amend by substituting a replacement brief, with the only change being that the original assignments were listed intact; all of the argument was the same. She didn’t address the merits of the appellees’ motion; she merely asked that her motion to amend be granted, at which point the appellees’ motion would be moot.

In a short order issued November 10, the Supreme Court took the most drastic approach available – it granted the appellees’ motion and struck the four assignments, refusing the appellant’s request to reinsert the original language. The court’s order doesn’t recite that the changes gave the appellant the opportunity to argue newly-raised issues; nor does it state that the arguments in the brief of appellant were insufficiently tied to the original assignments. The order also does not address the appellant’s citation to Rule 1:8 (“Leave to amend shall be liberally granted in furtherance of the ends of justice.”). These four assignments get the appellate death penalty, and the appellant will have to do the best she can with her one remaining assignment.

In my view, this order represents a noticeable change in the way the court deals with amendments to the assignments, and it means that I have to start giving out different advice on Rule #2. What’s behind this change? Here are some of the competing explanations, plausible and preposterous:

  • The justices have decided that enough is enough; because this kind of thing keeps happening, they need to take a stricter approach in order to get the message across. [This is one of the plausible ones, and until I know more, it’s my working hypothesis. There‘s no secret about the doctrine that assignments can’t be changed, and sooner or later, you get tired of reminding litigants to obey your rules.]
  • This appeal was decided by a motions panel that happened to comprise the three strictest members of the court. [This is sort-of plausible, but highly unlikely. I believe that if the court is going to undertake a sea change in its procedures, it will do so through either a rule change or a published opinion, both to give the full court the opportunity to weigh in on the issue, and to better publicize the change.]
  • This is just another example of how a group of fire-breathing, lawyer-torturing justices love to dismiss appeals for procedural violations. [Next.]
  • This decision is entirely consistent with Hamilton Development, because the argument section of the brief didn’t match up with the original assignments. [This one, too, is among the plausible ones, although there are holes in the theory. The appellees’ motion to strike never specifically made this argument, and the Supreme Court’s order doesn’t address it. If this is the correct interpretation, then it’s a tacit ruling made on an implicit, unstated motion; hence my skepticism. I don’t have the underlying briefs, so I can’t be sure.]
  • Rule 1:8 doesn’t apply in the Supreme Court, so since the appellant’s response didn’t address the substance of the appellees’ motion, that motion was unrefuted. [Actually, Rule 1:8 does apply in the Supreme Court. Part 1 of the Rules of Court, by its very title, is “Applicable to All Proceedings.” But I doubt this is the explanation for this ruling, which otherwise looks like an outlier among the court’s jurisprudence in this area of appellate procedure.]
  • The justices want the appellees to win this appeal; that’s the real reason why they ruled this way. [Sigh.]

So where does this leave us? Let’s start with the obvious – go back and read Rule #1. No appeal ever got dunked because the appellant stuck with the original language of the assignments. That does raise one predictable question: Suppose there’s an error in my assignment, and I want to correct it when I file my brief of appellant? In that event, the simple solution is to file a motion under Rule 5:4(a), asking the court for leave to correct the error. An appellant can’t unilaterally change the wording of an assignment, but I believe that the court might permit it if given a sufficient reason. Note that a sufficient reason does not include lack of forethought at the petition stage.

If the error you want to correct is non-substantive – a typographical misspelling of a name comes to mind – then according to the caselaw, you can go ahead and make that change. In doing so, I strongly encourage you to at least notify the court in a cover letter that you’re making that correction, assuring the court that it doesn’t affect the substance of the assignment. You may want to go ahead and file a motion for leave in a situation like this anyway; it’s overwhelmingly likely to be granted, and you won’t be seen as trying to pull off even a minor fast one.

One last point: The caselaw doesn’t address attempts to modify the language of the assignments at the petition stage, before the court grants a writ. That’s because of the nature of the appellate process; the court doesn’t issue opinions at the writ stage, so we’ll almost certainly never see a decision along those lines. If you’ve filed your petition and you realize before your panel date that you need to make a change, the court might let you do it on motion, since the concrete on the assignments hasn’t fully set yet. Again, you’d probably have to demonstrate good cause, but if the change is important, there is at last a potentially useful tool in this situation. The primary caveat here is the one I mentioned above: I can cite you no caselaw for this proposition, because there isn’t any.