In Parker, the appellant secured a (partial) reversal and remand on the issue the trial court actually decided.  So her attempt to assign error to a nonexistent ruling had no real adverse consequences.  A far more damaging mistake an attorney can make, however, is misdescribing the lower court's ruling in an assignment of error.

That is what happened in Martin v. Lahti, 295 Va. 77, 809 S.E.2d 644 (2018), a medical malpractice case.  At trial, the plaintiff testified that the deceased patient made a statement after the surgery in question: "I thought this would be an easy operation."  The trial court sustained the doctor's objection to the admissibility of that statement on relevance grounds.

On appeal, however, the plaintiff's assignment of error did not reflect the trial court's ruling that the statement in question was irrelevant.  Instead, her assignment of error argued that the trial court "erred in ruling that Plaintiff's proffered evidence was inadmissible hearsay and speculation."  Because that assignment of error did not accurately describe the trial court's ruling, the Court held that it was not sufficient.  Worse, because the plaintiff failed to assign error to the ruling the trial court did make, she waived her ability to challenge the trial court's ruling on appeal.

Crafting assignments of error in the Supreme Court of Virginia is tricky business.  There are several mistakes an attorney can make that will torpedo a client's appeal.  One of them is misdescribing the lower court's ruling.  Before you file a petition for appeal, make absolutely sure that your assignments of error accurately reflect what happened below.

Benjamin P. Kyber
Richmond Appellate Law Attorney Serving Virginia, Henrico County.
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