25 Surefire Ways to Torpedo Your Virginia Supreme Court Appeal

In 2017, 14% of all appeals decided by the Supreme Court of Virginia ended in a procedural dismissal.  By most accounts, the percentage is even higher for civil appeals—reaching upwards of 25% in some years. 

That is a sobering statistic.  About one-quarter of the civil appeals filed in the Supreme Court of Virginia are dismissed because someone—either a pro se party or an attorney—didn’t follow the rules.  When that someone is an attorney, the Court contacts the Virginia State Bar, and the attorney may face other consequences, including malpractice liability to their client.

Even worse, that statistic does not include nearly every instance in which an attorney makes a mistake that is fatal to their client’s hopes for an appeal.  These mistakes can happen in the trial court, long before an appeal becomes a concrete possibility, and the threat continues all the way through the appellate process. 

Here is a list of 25 mistakes an attorney can make that will torpedo an appeal to the Supreme Court of Virginia:  

  1. Failing to contemporaneously object to a ruling while the trial court can consider and rectify the alleged error.  Va. Sup. Ct. R. 5:25; Scialdone v. Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010).
     
  2. Telling a trial court that you are not asking for a ruling on your objection.  Nusbaum v. Berlin, 273 Va. 385, 405-06, 641 S.E.2d 494, 505 (2007).
     
  3. Not objecting to certain rulings from the trial court when required.  See, e.g., Kondaurov v. Kerdasha, 271 Va. 646, 655, 629 S.E.2d 181, 185 (2006) (“An objection to the admissibility of evidence must be made when the evidence is presented.”); Reid v. Bumgardner, 217 Va. 769, 773, 232 S.E.2d 778, 781 (1977) (holding that objections to improper argument must ordinarily be made before a case is submitted to the jury).
     
  4. Filing a motion to reconsider, but failing to provide the trial court with an opportunity to rule on it.  Brandon v. Cox, 284 Va. 251, 255-56, 736 S.E.2d 695, 696-97 (2012).
     
  5. Failing to renew a motion to strike at the close of all the evidence.  Norfolk S. Ry. Co. v. Rogers, 270 Va. 468, 481, 621 S.E.2d 59, 66 (2005).
     
  6. Waiving or abandoning a previously stated objection.  Graham v. Cook, 278 Va. 233, 248, 282 S.E.2d 535, 543 (2009).
     
  7. Failing to proffer rejected evidence.  Commonwealth Transp. Comm’r v. Target Corp., 274 Va. 341, 348, 650 S.E.2d 92, 96 (2007).
     
  8. Not making discovery requests and responses part of the record, where reviewing the requests and responses is necessary for the Court to consider an issue raised on appeal.  Greater Richmond Transit Co. v. Wilkerson, 242 Va. 65, 68 n.2, 406 S.E.2d 28, 31 n.2 (1991).
     
  9. Not recognizing that a final judgment has been entered when a final order does not expressly retain the trial court’s jurisdiction to adjudicate remaining issues.  Va. Sup. Ct. R. 1:1; City of Suffolk v. Lummis Gin Co., 278 Va. 270, 277, 683 S.E.2d 549, 553 (2009) (holding that a statement in a nonsuit order that a “suit shall remain on the docket” to consider a motion for attorneys’ fees did not prevent running of 21-day clock established by Rule 1:1).
     
  10. Failing to ensure that, within 21 days after the entry of a final judgment, order, or decree, the trial court retains jurisdiction by entering a subsequent order suspending, modifying, or vacating it.  Va. Sup. Ct. R. 1:1; Super Fresh Food Mkts. of Va. v. Ruffin, 263 Va. 563-64, 561 S.E.2d 734, 739 (2002).
     
  11. Failing to file a notice of appeal within 30 days of the trial court’s final judgment.  Va. Sup. Ct. R. 5:9(a); Sch. Bd. v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d 319, 323 (1989).
     
  12. Filing a notice of appeal in the Supreme Court of Virginia, rather than in the trial court.  Va. Sup. Ct. R. 5:9(a).
     
  13. Noticing an appeal from the wrong order.  Lyons v. Galanides, Inc., 207 Va. 874, 875-76, 153 S.E.2d 225, 226 (1967).
     
  14. Neglecting to include all necessary parties on appeal.  Asch v. Friends of Mt. Vernon Yacht Club, 251 Va. 89, 90-91, 465 S.E.2d 817, 818-19 (1996).
     
  15. Failing to file transcripts in the trial court within 60 days from the final judgment.  Va. Sup. Ct. R. 5:11(b); Wintergreen Partners, Inc. v. McGuireWoods, LLP, 280 Va. 374, 376, 698 S.E.2d 913, 914 (2010).
     
  16. Failing to provide a complete record, sufficient for the Supreme Court to determine whether the trial court has erred.  Va. Sup. Ct. R. 5:11(a); Prince Seating Corp. v. Rabideau, 275 Va. 468, 470-71, 659 S.E.2d 305, 307 (2008).
     
  17. Failing to file a petition for appeal within 90 days from the entry of the trial court order appealed from, or within 30 days from the entry of judgment by the Court of Appeals or that court’s denial of a timely petition for rehearing.  Va. Sup. Ct. R. 5:17(a); Smith v. Commonwealth, 281 Va. 464, 468, 706 S.E.2d 889, 892 (2011).
     
  18. Failing to include any assignments of error in a petition for appeal or opening brief.  Va. Sup. Ct. R. 5:17(c)(1)(i); Va. Sup. Ct. R. 5:27(c).
     
  19. Merely stating in an assignment of error that the ruling below is contrary to the law or the evidence.  Va. Sup. Ct. R. 5:17(c)(1)(iii).
     
  20. Inadvertently establishing the “law of the case” by failing to assign error to a lower court ruling.  Covel v. Town of Vienna, 280 Va. 151, 163, 694 S.E.2d 609, 616 (2010).
     
  21. Including an assignment of error that fails to accurately reflect the trial court’s ruling.  Parker v. Carilion Clinic, 296 Va. 319, 331-32, 819 S.E.2d 809, 816-17 (2018).
     
  22. Failing to assign error to every alternative ground for the lower court’s decision.  Rankin v. Commonwealth, 825 S.E.2d 81, 83-84 (2019).
     
  23. Including an assignment of error that is too specific.  John Crane, Inc. v. Bristow, Record No. 120947 (2013) (dismissing petition for appeal where alternative causation standard cited in petitioner’s assignment of error was itself rejected in appeal decided after petition was filed).
     
  24. Failing to include an argument supporting each assignment of error in a petition for appeal or opening brief.  Andrews v. Commonwealth, 280 Va. 231, 252, 699 S.E.2d 237, 249 (2010).
     
  25. Approbating and reprobating by taking positions inconsistent with those taken in the court below.  Lewis v. City of Alexandria, 287 Va. 474, 480, 756 S.E.2d 465, 469 (2014).

Keep in mind that this list is far from exhaustive.  There are countless other missteps an attorney can make that will have serious repercussions on their client’s appeal to the Supreme Court of Virginia.  Failing to avoid them can also lead to procedural default and professional consequences.

If you do not regularly handle appeals to the Supreme Court of Virginia, the best course of action is to contact someone who does.  Because even mistakes made in the trial court can torpedo an appeal down the line, it is never too early to consult an experienced appellate attorney about your case.  Here at The Mottley Law Firm, we have experience successfully handling appeals in the Supreme Court of Virginia.  Don’t wait until it’s too late.  Call The Mottley Law Firm at (804) 409-0876 to discuss your appellate litigation needs today.

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