Commentary

Supreme Court of Virginia Changes Rules Concerning Statements of Fact in Lieu of Transcripts

Two weeks ago, the Supreme Court of Virginia amended Rules 5:11 and 5A:8 concerning hearings related to statements of fact in lieu of transcripts. The amendments will take effect March 17, 2025 and will help practitioners and appellate courts alike in dealing with everyone’s least favorite part of completing the record for appeal. 

What are Current Rules Around Statements of Fact in Virginia?

Currently, both Rules require an appellant filing a Statement of Facts to file the proposed statement with the circuit court clerk’s office and to serve it on opposing counsel with a “notice that such statement will be presented to the trial judge no earlier than 15 days nor later than 20 days after such filing”. Rule 5:11(e)(1); Rule 5A:8(c)(1). 

What was amended regarding the rules?

As amended, the Rules will now also require the appellant filing a Statement of Facts to actually “set or request a hearing” on the matter “within the time specified”—i.e., within the 15-20 days after it is filed. 

The Supreme Court is also amending Rule 5:11(g), which governs objections to the Statement of Facts. Currently, an objecting party must file their objection within 10 days of notice from the appellant and “give the trial judge prompt notice of the filing of such objection”. As amended, “[t]he clerk must give the trial judge prompt notice” that objections were filed, and “the trial judge must set a hearing with notice to all parties”. Rule 5A:8(d) is being amended to require the trial judge to set the hearing on objections. 

What does this mean for parties involved?

These changes impose new obligations on the parties and trial courts when statements of fact are used in lieu of transcript. Instead of merely noticing a presentment of the Statements of Fact, the appellant must actually schedule a hearing on the matter. In instances where objections exist, the duty to schedule the hearing now shifts to the trial court. 

The 2022 expansion of the Court of Appeals of Virginia’s jurisdiction brought an increase of trial lawyers and pro se litigants availing themselves of the right of appeal, and with it, an increase of litigants relying on Statements of Facts. These amendments will help appealing parties in having the record necessary to perfect their appeal. But perhaps more importantly, they will help ensure that Virginia’s appellate courts can reach the merits of an issue instead of dismissing cases on procedural grounds for lack of a complete record.