February 26, 2021

So There’s Going to be an Appeal?

BY: Fernando Villarroel & Ben Charlton

As with most appellate topics, half the battle when it comes to the petition for appeal and brief in opposition is making sure you follow the court’s strict procedural and formatting rules. An important thing to keep in mind during these times living under the COVID-19 pandemic, is that the Supreme Court of Virginia has issued an order permitting and encouraging counsel and pro se litigants to file electronically all pleadings and documents that would otherwise be required to as hard copies with this Court.

Petition for Appeal to the Court of Appeals—Rule 5A:12

Filing Deadline: Due within 40 days after the filing of the record with the Court of Appeals. Rule 5A:12(a). The clerk of the Court of Appeals will notify counsel by email of the date on which the record has been filed. Rule 5A:10(e). An extension of 30 days may be granted in the discretion of the Court of Appeals upon a showing of good cause sufficient to excuse the delay. Rule 5A:12(a). Do not exceed 12,300 words. Rule 5A:12(e).

Petition for Appeal to the Supreme Court—Rule 5:17

Filing Deadline: Due within 30 days after the Court of Appeals’ entry of final judgment or order denying a timely petition for rehearing. Rule 5:17(a)(2). If you are appealing from the trial court, you have more time – 90 days. Rule 5:17(a)(1). Do not exceed 35 pages or 6,125 words. Rule 5:17(f).

While the Notice of Appeal to the Virginia Supreme Court is filed in the Court of Appeals (or trial court), the filing of the Petition for Appeal is in the Supreme Court itself.

Brief in Opposition in the Court of Appeals—Rule 5A:13

Filing Deadline: Due within 21 days after the petition is served on counsel for the appellee. Rule 5A:13(a). An extension may be granted if a motion is filed within 10 days of the expiration of the deadline. Do not exceed 8,800 words. Rule 5A:13(b)(1).

Brief in Opposition in the Supreme Court—Rule 5:18

Filing Deadline: Due within 21 days after the petition is served on counsel for the appellee. Rule 5:18(a). This rule does not include a similar extension provision. Do not exceed 25 pages or 4,375 words. Rule 5:18(b). You may assign cross-error. Rule 5:18(a)(c). Be careful. Should the Court dismiss the petition, your assignments of cross-error disappear, too. If you absolutely crave the Court’s decision on an appealable ruling adverse to you, you may be better off filing your own petition.

Practice Pointers

If the petition does not contain assignments of error, it will be dismissed. The appellate courts are very strict with this rule. The assignment(s) of error should also be listed together under a separate heading entitled “Assignment(s) of Error.” Don’t forget about the all-important Rule 5:25, either. This rule requires counsel to have properly preserved issues for the appellate court to consider them. The appellate court will welcome a chance to avoid addressing an issue that was not properly preserved.

In the argument section of the petition, for each assignment of error, there must be a standard of review and argument that follows. The argument should include principles of law and the authorities. A good way to organize your argument section is: following the standard of review, state the rule or statute, explain the law, and apply the law.

Read the transcript(s) multiple times throughout writing the petition for appeal or brief in opposition. Do not read it only once before beginning the first draft. As you write and become more familiar with the case law, you will want to refer back to the transcript(s) to make sure you are phrasing the issue(s), facts, rulings, and findings accurately.

The petition for appeal, whether in the Court of Appeals or the Supreme Court, serves as the foundation of the appeal. It is thus vital to invest the time and attention to making sure you draft a quality text. And while it is important that one present a clean and concise work product, always be mindful of the procedural rules. You never want your client’s appeal – and the hard work you put into it – to be for naught if the petition is ruled to be procedurally defaulted.

If you’re an appellee on the receiving end of an appealed money judgment, make sure that there will be money to collect should you win the appeal. Rules 5A:17 and 5:18 tell you how to make it happen. Don’t forget to account for a year of interest in the bond amount. Va. Code § 8.01-676.1(J).

Remember that in the Brief in Opposition, your job is to convince the Court that it does not need to hear the appeal at all––a “these aren’t the droids you’re looking for” kind of scenario.

Finally, be brief. The length requirements are restrictive, not aspirational.

Here are a couple other rules to keep in mind:

  • Filing deadlines (Rule 5:5)
  • Forms of briefs and other papers (Rule 5:6) – choose one of the fonts listed on the Virginia Supreme Court’s website. Of these, typographer and lawyer Matthew Butterick recommends Century Schoolbook. And don’t forget to use 14-point font.
  • Supplemental authorities (Rule 5:6A) – read a crucial case the day after filing your brief? Fear not! This rule will allow you to write a letter to the Court to share the good news.
  • Notice of appeal (Rule 5:9)
  • General requirements for all briefs (Rule 5:26)

If the appellate court grants the appeal, there is more work to do! The advice here is the same – strictly follow the applicable rules and write clearly and concisely. Appellate work can be incredibly rewarding. Happy writing!

About the Authors

Fernando Villarroel is a senior associate attorney at the Irving Law Firm, PC, where he defends clients in serious and complex criminal matters at both the state and federal level. He is the President of the Hispanic Bar Association of Virginia, and he is the Fifth District Representative of the Virginia State Bar’s Young Lawyers Conference. He can be reached at [email protected].

Ben Charlton is an associate attorney at Frei, Mims & Perushek, L.L.P., where he represents personal injury and medical malpractice plaintiffs. He is the President of the Fairfax Bar Association’s Young Lawyers Section, and he is the Fifth District Representative of the Virginia State Bar’s Young Lawyers Conference. He can be reached at [email protected].