The Supreme Court of Virginia recently handed down multiple decisions that you should pay attention to: Doe v. Green, Commonwealth v. Jackson, and Knudsen v. Taylor. There’s too much to discuss and too little time (it’s a holiday weekend after all), so I’m focusing on a gift that keeps on giving: appellate procedure.

Some takeaways and tips to avoid the SCV’s naughty list:

• Preservation is everything. If you have a brilliant legal theory, don’t wait until your appeal to raise it. Make your argument to your trial court first. And certainly don’t wait until your reply brief to mention it.
• The record is critical. If the record doesn’t reflect that the court has appellate jurisdiction, you are out of luck. This means you need to do two things: (1) pay attention to the record transmitted and make sure it contains everything you need; and (2) pay attention to jurisdictional requirements.
• What is the difference between accepting responsibility vs. punishing a litigant for exercising their right to plead not guilty? Read Commonwealth v. Jackson for the Supreme Court’s take in the probation violation context.

Procedure: Details matter

For today, we will focus on Doe v. Green. There, an appellant filed a complaint alleging terrible sexual abuse as a child. The issue before the trial court was the statute of limitations. On appeal, the parties continued making some of the same arguments—but this time added a new reason why the Circuit Court erred in sustaining a plea in bar in the appellant’s reply brief. What did the CAV do? It affirmed, and it ignored the new argument in its decision.

The SCV also affirmed. It relied upon Rule 5:27(d) which requires an Opening Brief to contain the “. . . argument, and the authorities relating to each assignment of error.” According to the SCV, the statute mentioned in the reply brief wasn’t the equivalent of citing a new case; this was “an entirely new basis” for why the Circuit Court erred. As a result, Doe waived her new argument by failing to raise it in the Circuit Court and waiting until the reply brief to mention it. Devastating. The Opinion also touches on retroactivity issues and allegations in the Complaint, so it’s worth a read.

Author’s note: But for the waiver already mentioned, the CAV’s failure to mention the appellant’s (late) argument could also have been problematic for another reason. I encourage appellants to consider filing a petition for rehearing in a situation like that, asking the CAV to rule on a good argument that the Court did not address. Of course, the specific arguments that you wish to rely on must be properly before the CAV to begin with. But if you need to tell the SCV that the CAV made a mistake, then you need to show: (1) not only that you made your argument to the trial court and the CAV, but also (2) that you received a ruling or did all you could to receive one. And if a lower court didn’t rule on your argument, then you need to: (3) assign error to the failure to rule, in addition to your merits arguments. And last but not least, take a moment to clarify your position, when needed. You want the record to be crystal clear.

If it sounds complicated, it’s because it is. 

This is one of the reasons why appeals are a specialty. I have some colleagues who enjoy writing the briefs and doing research, but they don’t love procedure. Here’s the truth, appeals ARE procedure. The editorial process is icing on the cake. If you skip important steps or don’t properly analyze procedural defaults, you are missing a huge piece of this pie. After all, the SCV doesn’t get its opportunity to analyze your beautiful writing or your legal theories if the arguments are waived or if the Court lacks jurisdiction.

I’m grateful for this work.

I know that appeals are not everyone’s cup of tea. But there’s a lawyer for everyone—isn’t that something to celebrate? 

If appellate procedure gives you anxiety, we’re here to help. It brings me so much joy. I’m currently sitting by my Christmas tree as I write this post, while my kids are playing with cousins. I’m maxed out on caffeine and eating leftovers. This is bliss.

I hope that you have a few joyous, quiet moments yourself this weekend. Happy Thanksgiving!