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  • Norman A. Thomas

Helpful Tips to Follow When Trial Counsel Anticipates an Appeal

Updated: May 14, 2021

Every trial attorney knows the feeling. The trial court makes a ruling that effectively guarantees that your client or clients will appeal the case’s final judgment. The ruling appears to be both erroneous and prejudicial to your client’s interests. It may come early or late in the litigation. And to paraphrase an oft-used expression, trial counsel “knows it” when he or she “sees it.” In this posting, I provide some helpful tips to follow when trial counsel realizes that his or her client most likely will seek appellate review. My listing is not exhaustive. Instead, I here provide a basic framework to assist trial counsel.

First, counsel must timely assert the client’s position. At a minimum, this requires making an objection or statement of the client’s position to the court, articulating specific grounds for the objection or position, and obtaining a ruling from the judge. Timing is key; the objection must be made or position asserted in time for the judge to consider the matter and have opportunity to correct the alleged error.

Second, avoid a subsequent waiver of the client’s objection or position. In general, a “waiver” constitutes an intentional relinquishment of a known right. Yet in reality there exist numerous ways in which trial counsel may procedurally waive his or her client’s objection or position. In Virginia, Code §8.01-384 creates a partial safe harbor against various forms of inadvertent waiver. It is worth a careful reading.

Third, make a record. When a court reporter is present it is easy enough to order a transcript. Once prepared, the transcript’s original must be filed with the Clerk of Court and opposing counsel notified of the filing. Upon receiving the transcript (or a copy of it) counsel and the client should review it for accuracy. Understandably, it is not always easy to convince a client to authorize incurring the cost of a court reporter. And the preparation of transcripts can be expensive. If the trial court commits potential reversible error at a hearing where no court reporter is present, then counsel should act promptly to prepare a written statement in lieu of a transcript. Once that written statement is drafted, counsel must take the procedural steps necessary to obtain the trial court’s approval of it and its inclusion in the record. In Virginia, the procedural steps required for approval of a written statement in lieu of a transcript are structured and include a number of timing deadlines.

Fourth, once the court enters final judgment, counsel must ensure that the final order or decree truly is appealable. Does the final order fully resolve all claims, counterclaims and causes of action raised in the case? In Virginia, Rule 1:1(b) of the Rules of Court provides the definition of a final, appealable order. Staff counsel of the Virginia Supreme Court and Court of Appeals review purported final orders to determine their Rule 1:1(b) compliance. If non-compliant, the Court will dismiss an appeal without prejudice and remand it to the trial court for entry of an appealable final order. When this happens it results in additional expense and significant delay.

Fifth, counsel must timely file the Notice of Appeal. The Virginia Rules of Court specify the form and contents of appeal notices and require that they be filed within thirty days of the final order’s entry. Be sure to contact the Clerk’s Office to determine if it charges a filing fee. Many Clerk’s Offices do not charge to file a Notice of Appeal, but an increasing number of them do so. In those jurisdictions, the Clerk will not file a Notice of Appeal unless and until that fee is paid. Trial counsel necessarily must beware this potential procedural pitfall. Remember, the timely filing of a Notice of Appeal is jurisdictional.

Sixth, upon entry of an adverse judgment and filing of an appeal notice, the client most likely will desire suspension of execution of that judgment pending the appeal’s outcome. Virginia Code §8.01-676.1 provides for suspension of execution (i.e., “supersedeas”) of judgments. To protect against collection of a money judgment during the appeal’s pendency or the effectuation of declaratory or injunctive relief, trial counsel may move the trial court to set a bond amount and assist the client to obtain the necessary surety or irrevocable letter of credit. The statute gives a trial court discretion to reduce or waive the surety amount of a suspension of execution bond, and to relieve an indigent person from posting a bond. Note that some categories of final judgments are excepted from suspension of execution, such as those for support or child custody.

Finally, for appeals of right, Va. Code §8.01-676.1 requires the posting of $500 appeal bond for costs. In that instance, the appeal bond must be filed simultaneously with the Notice of Appeal. In discretionary appeals, the appeal bond is filed only upon the granting of the client’s petition for appeal.


Yes, it is a lot to remember. But once conscientious trial counsel gets “that feeling” of an inevitable appeal, a bit of proactivity goes a long way to ensuring appellate review. It is all about vindicating your client’s appellate rights in accordance with applicable procedural requirements. Although I have couched this posting in terms of Virginia’s procedural rules, the Federal Rules of Appellate Procedure and the rules of other states contain their equivalents.

My law firm stands ready and willing to work with you and your clients to prosecute or defend appellate litigation in Virginia and federal appellate courts. Contact us at

Norman Thomas


Disclaimer: The information in this blog post is provided for informational and discussion purposes only. It may not reflect the current law in a reader's jurisdiction. No information contained in this post should be construed as legal advice from Norman A. Thomas, PLLC or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. Before taking any action a reader should seek appropriate professional advice from a licensed attorney on the particular facts and circumstances at issue in any court case or legal matter.

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