Proceedings in appellate courts are very different from those in trial courts and each one of the appellate courts has their own set of rules and internal operating procedures. If you do not follow the rules carefully, you may lose the chance to have your appeal considered. The role of Counsel Press’ appellate counsel and appellate consultants is to advise and shield our clients from all potential pitfalls.
In this article, we go over some of the most common errors we see in petitions and briefs to the Supreme Court of Virginia and the Court of Appeals of Virginia. We will also cover some of the rule amendments that the Supreme Court of Virginia introduced on May 16, 2014, allowing previously fatal procedural errors to be corrected. Some of the points below may seem fundamental, but, make no mistake, these guidelines are vital components to your filings.
Common Errors in Petitions and Briefs
1) Assignments of Error – failure to cite to the record where the error was preserved.
2) Insufficient Assignments of Error – per rules. “An assignment of error which does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken, or which merely states that the judgment or award is contrary to the law and the evidence is not sufficient. If the assignments of error are insufficient, the petition for appeal shall be dismissed.”
3) Statement of Facts – failure to include record page cites.
4) In a Petition to the Supreme Court from the Court of Appeals – failure to address findings in the Court of Appeals in the Assignments of Error and only address the trial court’s error. After May 16, 2014, it is now sufficient to state that the trial court erred, as long as the Court of Appeals ruled on the specific merits and the error assigned is identical to what was assigned in the Court of Appeals. This was a common error before the rule change, and a fatal one.
5) In a Petition to the Court of Appeals – phrasing the Assignments of Error in question format. In 2010, the rule changed and Questions Presented are no longer allowed. The Assignments of Error must be in the form of an affirmative statement.
Common Errors in Briefs in Opposition and Appellee Briefs
1) Failure to include the Standard of Review – it is not sufficient to simply state that you agree with the appellant’s Standard of Review. You must state what the Standard of Review is.
2) Failure to include record page cites in the Statement of Facts – this is an optional section for an appellee, but, if you include the section, you must include the record cites.
What else changed on May 16?
One change is that the preservation reference is not considered a part of the Assignments of Error, so it is a curable defect.
Other changes have allowed for certain technicalities, such as failure to use a separate heading or to include a preservation reference, to be corrected by the issuance of a show cause rather than dismissal and the possibility of having the Court report the dismissal to the Virginia State Bar. Many more cases will now be allowed to proceed on the merits and not be dismissed on technicalities.
Please contact me with any questions regarding preparing and filing any appeal. Counsel Press provides a full spectrum of appellate services. Through our local offices, we offer unparalleled expertise in all state and federal appellate courts nationwide. Our office in Richmond focuses on rule-compliant appellate filings in state courts in Virginia, West Virginia, and South Carolina, as well as the Fourth Circuit and the Eleventh Circuit.