Don't Reply All: SCOVA Limits Replies Supporting Appellate Motions

There are several reasons one might file a motion in the Supreme Court of Virginia.  For example, if a petitioner has missed a mandatory deadline, or their appeal is otherwise procedurally defective, the attorney for a respondent might file a motion to dismiss the petition for appeal.  Or a litigant seeking a faster resolution of a time-sensitive issue might file a motion seeking to expedite the Court's consideration of their case.

Appellate motions filed in the Supreme Court of Virginia are governed by Rule 5:4.  After a motion is filed, Subsection (a)(2) of that Rule gives opposing counsel 10 days to file a response. As it stands now, however, Rule 5:4 is silent about whether a movant may file a reply or rebuttal in support of their motion and, if so, when they can do so.  Given the Court's silence on the issue, it has been our usual practice to file reply memoranda supporting appellate motions.

The rule governing appellate motions will soon change.

Effective July 1, 2019, Rule 5:4(a)(2) will be amended to dictate that, once a response to a motion is filed, "no further pleadings in support of or in opposition to a motion may be filed without leave of Court."  Thus, the default rule will be that replies and rebuttals are prohibited.

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