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Proposals to harmonize rules floated by panel

Differences in the rules of the Supreme Court of Virginia and the Virginia Court of Appeals have tripped up many otherwise competent attorneys.

One difference has been especially troubling. The court of appeals rules require that a petition for appeal contain “questions presented” but say nothing about “assignments of error.” Supreme Court rules say nothing about “questions presented” but require “assignments of error.”

Confusion on the distinction has the same effect in both courts: dismissal of the appeal, as has happened frequently when an inattentive practitioner foolishly assumed that his petition for appeal to the Supreme Court required only minor editing from his petition to the court of appeals.

Harmonizing such differences was a major goal of an appellate rules advisory committee chaired by Justice Donald W. Lemons. The committee has finished its work of recommending changes to Part 5, which governs Supreme Court practice, and Part 5A, which covers the court of appeals, of the Rules of Court. The proposed rules and the committee’s report are available below.

Lemons said the goal of the committee was “to propose modifications that promote, clarity, conciseness and uniformity in the rules of both the Supreme Court and the Court of Appeals.” That goal was realized at least on the distinction between questions presented and “assignments of error.”

Under the proposed rules, assignments of error would continue to be jurisdictional, in the court of appeals as well as in the Supreme Court, but questions presented no longer lurk in the rules to trap the unwary.

“The proposals include changing the format of the rules to make them easier to navigate,” Lemons said. “Titles have been updated and headings have been added to each section to more accurately reflect the content of each rule.”

Supreme Court Clerk Patricia L. Harrington, a member of the committee, gives much of the credit for more useful headings and descriptions to former Justice John Charles Thomas, who had served earlier on the advisory committee that recommended revisions to the Federal Rules of Appellate Procedure.

Before Lemons’ committee began its work in September 2005, Thomas said, “You might not be able to soften the rules, but you can make it clear what will happen.”

The rules are softened to some extent. For example, failure to file a transcript on time is fatal to an appeal under the current rules. Even if some of it was filed on time, the rules bar consideration of any point covered in a transcript that might have been inadvertently omitted.

The proposed rules would allow those late transcripts to be added to the record after the deadline on a showing of good cause.
Any softening is relative, however. The proposed changes stop well short of the approach of the 4th U.S. Circuit Court of Appeals, which appears to be to get an appeal perfected, no matter how sloppy an attorney might be in filing it. There, attorneys in most cases are notified that their petitions don’t comply with the rules and are given a chance to correct them. The clerk’s office also provides a scheduling order to counsel as soon as a notice of appeal if filed.

The proposed Virginia rules hardly contemplate that level of handholding, but Rule 5:6, adopted by the Supreme Court independent of the work of Lemons’ committee, is an example of the general approach of the proposals.

The rule sets more stringent requirements on the size and type of fonts that can be used in briefs and requires more contact information for attorneys and the filing of electronic copies of briefs, but it allows Harrington’s office to require that documents be redone rather than dismissing the appeal if they are otherwise timely.

The new rule took effect Feb. 1, but Harrington said her office still has to tell attorneys that they must comply with the formatting provisions before their documents will comply with the rule. Getting electronic copies hasn’t been as much of a problem, she said.

Other significant proposals include:

• Permitting a written statement of facts in lieu of a transcript only if the court authorized it prior to a hearing. The issue was among the most debated by the committee, with Thomas noting that anything that appeared to affect poor litigants was like to face criticism and other members, especially judges and family law practitioners, countering that the effort to create a statement of facts often costs more than a transcript.

• Directing circuit court clerks to maintain custody of such exhibits as drugs, weapons, money, clothing and bulky items rather than ship them to the appellate courts with the rest of the record. Attorneys could petition the appellate court to have the circuit clerks transmit such evidence it they believe it is important to their appeal.

• Allowing pleadings to be filed through Federal Express, UPS and other commercial carriers as well as by registered or certified mail, so long as the method includes a receipt that shows that the document was mailed before the filing deadline.

• Permitting a notice of appeal to be filed after a judge has ruled from the bench but before he has entered a written order, with the notice considered to be filed on the day the order is entered. Rule 5:9 now at least arguably makes ineffective the filing of a notice of appeal before the order is entered.

Lemons said he expects the proposed rules to be reviewed by the rules advisory committee of the Judicial Council and the council itself before Supreme Court considers adopting them.

He noted that the 26-member committee included trial and appellate judges, appellate and circuit court clerks and attorneys from diverse areas of practice. Its work “is the product of much deliberation, and hopefully, it will be a welcome improvement to the rules of practice in Virginia.”

Committee Report for June 9, 2008

SCV Rules revised for June 9, 2008

CAV Rules revised for June 9, 2008

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