The first of July each year normally represents the “effective date” of the General Assembly’s newly enacted laws. This year, that date signifies even more. The Virginia Supreme Court, pursuant to its rule-making power under Va. Code §8.01-3, periodically revises the “rules of practice” for Virginia’s court system. Several such rule revisions for the Rules of the Supreme Court of Virginia (Part 5), and the Rules of the Court of Appeals of Virginia (Part 5A), commenced their applicability on July 1, 2015.
“Oh, no!,” you say, “What now?” Well, in fact, the amendments and additions make good sense. In general, they streamline aspects of appellate practice, and in some measure embrace our “less paper” oriented profession. Below, I’ll walk you through the highlights of the more significant rule revisions. You may view all of the amended rules on the Supreme Court’s website, at http://www.courts.state.va.us/courts/scv/amend.html
Rule 5:6(a) and Rule 5A:4(a) anticipate new, and future e-filing, by providing that briefs, appendices and other filings, “may be printed or produced on screen by any process that yields a clear black image on a white background, and when printed, must be on 8-1.2 x 11 inch paper.” Subpart (c) of each rule provides that noncompliance will not result in dismissal of the appeal, unless a party fails to comply “after notice of noncompliance.”
Rule 5:6A and Rule 5A:4A now enable a party to inform the appellate court by letter, not to exceed 350 words, of “pertinent and significant authorities” that come to the party’s attention after briefing or oral argument, yet prior to the court’s decision. In its discretion, under certain circumstances, the court may refuse to consider the supplemental authorities.
Rule 5:13A and Rule 5A:10A constitute new rules. Each rule, in its subpart (a), allows those local courts that “utilize the Case Imaging System developed by the Office of the Executive Secretary” to choose to compile a “Digital Appellate Record” instead of a paper record, “with substantially the same content as its paper counterpart.” Other subparts make provision for exhibits not amenable to imaging, govern the manner of the record’s transmission, and mandate that the publicly available digital record exclude information “that is sealed or protected from public disclosure.”
Rule 5:17(c)(1) and Rule 5A:12(c)(1), regarding the Assignments of Error contained in a Petition for Appeal, still require a party to list the “specific errors in the ruling below.” Yet, now, in addition, a party alternatively must list, “the specific existing case law that should be overturned, extended, modified, or reversed.” This additional requirement enables a party to add clarity to the Assignments of Error, by pinpointing any prior decisional authority at issue in the appeal. Subpart (j)(4) of Rule 5:17 now requires that the date and time of oral argument on a Petition for Appeal will be provided to counsel for the appellee, and, to any pro se appellee participating in the appeal.
Rule 5:17A and new Rule 5A:38 pertain to petitions for review of injunctions, as provided for by Va. Code §8.01-626. Any attorney anticipating an appeal respecting the granting, refusal, dissolution or scope of an injunction should carefully read the entire applicable rule. Among each rule’s provisions, subpart (b) requires that upon filing and serving a petition for review, a party must email a copy of the petition to counsel for the respondent, if said counsel maintains an email address. Subpart (d) enables the filing party to file a single copy of the lower tribunal record if he also files a PDF version of it on a CD-ROM. Subpart (f) states that the appellate court to review injunctive issues of either a temporary or permanent nature, and sets out rules for review of final orders that combine injunction-related provisions with final disposition of other issues. Subpart (g) governs a respondent’s entitlement to file, and the time frames for, a response to a petition for review.
Rule 5:19, at subpart (b), extends from seven to fourteen days the time for an appellant to file a Reply Brief, to address the cross-error assigned by an appellee in a brief in opposition to the appellant’s Petition for Appeal.
Rule 5:20 pertains to petitions for rehearing following denial or dismissal of a petition for appeal, refusal of a cross-error, or disposition of an original jurisdiction petition. The Supreme Court revised its text, re-designated several subparts, and eliminated former Rule 5:20A. Note that subpart (c) requires electronic filing of such petitions for rehearing in PDF format, and designates the email address to which they must be sent.
Rule 5:26(j) and Rule 5A:19(g) are new, and located among the provisions that set out, “General Requirements for All Briefs.” These subparts mandate that “a person filing a document electronically shall have the same responsibility as a person filing a document in paper form[.]” Yet, the provisions specify how a party may document technical problems and be excused from untimely filing caused by such problems.
Rule 5:30 and Rule 5A:23 govern the procedures for amicus curiae briefs. Each rule, at its subpart (a), newly provides that an amicus curiae brief may be filed, “in proceedings invoking this Court’s original jurisdiction.”
A definitive knowledge of appellate rules and procedures is “a must” for those attorneys who undertake appellate cases. Just as with new legislative enactments, and case decisions that affect legal rights, revisions to appellate rules represent “mandatory continuing legal education” for Virginia attorneys conducting appeals from civil, criminal or administrative law decisions.