Let’s talk about something difficult to get *just* right: assignments of error.

Why do we have assignments of error?

• To put opposing counsel and the Court on notice of “the points” the appellant is raising to seek reversal. See Findlay v. Commonwealth, 287 Va. 111, 115 (2014).

How specific do you need to be? 

• You need to state the error with “reasonable certainty.” Id. (internal citations omitted); Commonwealth v. Herring, 288 Va. 59, 81 (2014). 
• In other words, you need to “lay [your] finger on the error.” See id. (citing Carroll v. Commonwealth, 280 Va. 641, 649 (2010)). You can’t simply say that the trial court entered a judgment contrary to law and ask the appellate court to search the record for you. Hint: there is a rule that says this expressly. 

So we want to be specific. But you also don’t want to be too specific.

Why?

Because if you stray outside of the bounds of the assignment of error, you’re sunk. It’s a jurisdictional issue and the appellate courts can’t consider those arguments.

I see this often. Attorneys try to argue with their assignment of error. They will include additional language to try to bolster their position which can be interpreted as words of limitation. Please know that good appellees can and should be raising this. And even if the parties miss it, our appellate courts won’t. 

So what’s a Virginia lawyer to do when drafting these? You do the best you can. You want to find the Goldilocks of assignments of error by making it clear what the issue is broadly without additional fluff or explanation. When in doubt, I would generally suggest erring on the side of making your assignment of error less specific rather than more. 

As you’ve gathered, this is much harder to do in practice than in theory. Luckily, you know a friendly appeals firm who does this for a living.

And spoiler alert: we love it.

There is likely a link between my eldest daughter status and my love for rules and competition. Informal polling at the firm shows that the three lawyers here are all the eldest children. Any statisticians (or therapists) out there who can confirm this correlation?

P.S. Why do I say no more than three assignments of error?

• You want to be taken seriously. The trial court might have truly erred in ten different ways at ten different times. If so, pick your best three issues and focus solely on those. We have word limits and our judges are busy. A “kitchen sink” approach is not going to get you far.
• How do you narrow your issues down? I’ll take that up in a future post.