A Wrinkle in (Appellate) Time: Briefing Before the Record Is Transmitted

Since I recently wrote about the Record (sort of; time is relative), I wanted to piggy-back on that topic to explain a wrinkle in the appellate practice/rules dynamic.

The Wrinkle

Among the many new appellate rules in Virginia, some are categorically novel. As in, they add an entirely new procedure that did not exist in Virginia appellate practice before January 1, 2022. One of those pertains to the record. In ye olden times, every case required the filing of a Joint Appendix, the compilation of portions of the record relevant to the appeal. The Joint Appendix was filed contemporaneously with the Opening Brief, and both—as well as subsequent briefing—had deadlines that ran from a date certain: the entry of the final order. Because of this timeline and process, appellees had the Joint Appendix in hand by the time they drafted and filed their brief in response.

Now, Joint Appendices are not required if the record is electronic. Which is a great development! But the related change is that the filing of assignments of error (Rule 5A:25, also a new development in itself) and briefing deadlines (Rule 5A:19) are now triggered by something without a date certain: the Court of Appeals’ receipt of the Record from the circuit court. Other than the appellant’s obligations to ensure the record is complete in the circuit court, the parties essentially sit tight until the Record is filed with the Court of Appeals, which starts everyone’s clock.

But what happens if the appellant doesn’t sit tight?

What if the appellant files their Opening Brief before the Record is filed? Under Rule 5A:16(a), an appeal is “considered mature for purposes of further proceedings from the date the record is filed in the office of the clerk of this Court.” Rule 5A:19’s briefing deadlines contemplate the same. But Rule 5A:19 doesn’t specifically preclude filing early either, and it unambiguously requires the Appellee to file their brief within 30 days of the Opening Brief. While other deadlines run from the date the Record is filed with the Court of Appeals, the Appellees’ briefing clock runs from the filing of the Opening Brief.

This difference can put the Appellee in a tight spot. Depending on how early the Appellant files the Opening Brief, the Appellees’ 30-day clock may very well expire before the record is even filed in the Court of Appeals. This means that not only can you not cite to the Record itself, but you are somewhat blinded in presenting your arguments; you do not have what the Court will eventually have in reviewing your brief.

What to do?

Short of a rules amendment that irons out this wrinkle, and despite Rule 5A:16(a) stating that the appeal is “mature” upon the Court of Appeals receiving the Record, I think the Appellee has to file their brief within 30 days of the Opening Brief, even if there is no Record. But since you are filing before the Record is available to you or the Court, a couple things to keep in mind:

  • Pay attention when the Record is filed. Review it and see if it changes anything that may require a motion, a Rule 5A:6A letter (for supplemental authorities), or a shift in strategy for oral argument;
  • Since you can’t comply with Rule 5A:19(f) (“Citations to the record or Joint Appendix”), cite to what you can with specificity to make things easy on the Court and its clerks;
  • Take more time. You will now have to comb your files, and possibly the circuit court record before it is transferred, to cite to documents in the record. Or you may have to pay to get a copy of the record before it is transferred. All of this is more time-consuming than opening the Record and clicking on the electronic bookmark in the PDF;
  • Write for a reader who has the Record. Your panel may read your brief before the Record is filed; they might not. But they will eventually have access to the Record so you don’t need to write as if they have blinders on.

There is a lot happening in appellate practice in Virginia. There have already been numerous amendments to the Rules, and that will likely continue as the Court and practitioners get used to this new landscape.

Keep your head on a swivel!

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