The Supreme Court of Virginia issued a new published order today in Cappe v. Commonwealth. Although a criminal case, the lessons are universal.

First, a reminder: you must assign error to each holding that you disagree with from the lower court. Here, the Court of Appeals found any error on a particular issue was harmless. The appellant–who strongly disagreed–correctly assigned error to that holding. So far so good!

The appellant then managed to get his appeal granted. No easy feat, especially in today’s Supreme Court climate. 

So where did things go wrong? Briefing.

The Supreme Court implied that counsel reused the argument section from earlier briefs. The SCV actually went as far as to suggest that counsel copy-and-pasted whole portions. Unfortunately, in reusing his prior argument, it appears that counsel forgot to include an argument explaining why the Court of Appeals got its harmless error analysis wrong.

The Supreme Court noted that not only was there no argument section on one of the issues, the brief did not explain what the standard of review is. This is a required section of the brief. As the SCV notes: “Ours is an adversarial system of justice, in which courts rely on advocates to marshal arguments for their clients.” Because of this, the SCV announced it was declining to reach the assignment of error.

The attorney from OAG assigned to this case is one of the best in the biz. Experienced appellate lawyers will not miss a procedural default. The lesson here is not to give your opposing counsel such an easy out.

So tread carefully. Read the rules and include all of the relevant sections. And don’t simply reuse your brief. If you are fortunate enough to get a petition for appeal granted, use every opportunity to impress the Court.

Likewise, when you’re the appellee, use every tool at your disposal! Procedural defaults are every appellant’s worst nightmare. Examine all potential issues and be prepared to make use of them.

And don’t forget the basics:

• Make sure you look through your assignments of error when drafting your brief. Make sure each assignment of error is included and clearly labeled in your argument section. Each should also have a standard of review section under a separate heading.
• Harmless error is something courts must examine. Don’t forget that!
• Keep these sections in a form brief (so that you see them and are reminded to use them) or write some of these things down in a checklist that you use for your appeals.

Appeals are tricky. Even experienced appellate practitioners make mistakes. If you’re feeling overwhelmed, phone a friend and read the rules.

You’ve got this!