Since Virginia expanded its appellate jurisdiction, many once-foreign aspects of appellate practice are now front and center for many trial lawyers. A critical one relates to the contents, use, and role of the record on appeal.
What is the Record on Appeal? And Why Does It Matter?
First, what is the record on appeal? It is the Virginia circuit court proceedings, maintained by the circuit court clerk, that is transferred to the appellate court for an appeal. It includes all filed documents, exhibits, instructions, transcripts, and more. See Rules of the Supreme Court of Virginia, Rule 5A:7. The record can be easily overlooked in appellate and trial practice. Don’t let it be. There are two main reasons it matters.
During the Olden Days, civil appeals had little mystery when it came to timing: the deadlines for both a Notice of Appeal in the circuit court (30 days) and a Petition for Appeal in the Supreme Court of Virginia (90 days) were dates certain, easily computed from the entry of the final order. But now, many filing deadlines turn on the receipt of the record by the Virginia Court of Appeals from the circuit court. Specifically, Rule 5A:19 requires the Opening Brief to be filed “within 40 days after the date of the filing of the record” in the CAV clerk’s office. The Appellee’s brief and Reply brief deadlines then proceed from that date.
Also, the record on appeal is vital for the appellate court’s review of any case. The job of an appellate court is to review for error. Because it wasn’t at your trial, the appellate court’s view of your case is only as good as the record before it. It is the case snapshot and the only view the appellate court has at its disposal. Assuming you want the court to rule in your favor (you do), ensuring the record is complete is of critical importance.
Completing the Record on Appeal
The record is completed in the circuit court before it is transferred to the Virginia Court of Appeals, which gives the appellant the opportunity to make sure the record is accurate and contains everything necessary to resolve the appeal. Did the parties forget to hand up the instructions at trial? Did that file-stamped pleading that no one remembered actually make its way to the record? Did the judge forget to give that signed order to the clerk? Now is the time to rectify these hiccups.
Rule 5A:7 says what the record contains and reminds counsel that disagreements over the contents are to be resolved by the Virginia circuit court. Rule 5A:8 then describes the procedure for filing transcripts, a written statement of facts (PSA: please file a transcript), the notice of filing transcripts, and how objections to transcripts or written statement of facts (PSA: please file a transcript) are to be resolved. Even if you don’t anticipate disagreement, it is worth reviewing these provisions to be ready when it happens.
Virginia Court of Appeals Record Transfer Process: What You Can Do
Rule 5A:10 then gives time for the parties and the clerk to ensure the record is complete. The clerk must retain the record for 21 days after the Notice of Appeal is filed and 21 days after any transcript is filed. Once those times elapse, the clerk must “forthwith” transfer the record, and their time for doing so is capped at three months from the entry of the judgment being appealed. Because the briefing deadlines turn on the record being transferred, this period implicates how long an appeal can take.
Tucked away in Rule 5A:10(d) is a useful tool: if you and your opposing counsel agree, you can ask the circuit court clerk to transfer the record promptly. It says that “notwithstanding that the foregoing periods of retention may not have expired, the clerk…must transmit the record sooner if requested in writing by counsel for all parties to the appeal.” If both sides agree that the record is complete and that moving things along would be best, this is the only tool at your disposal to help in that effort.
Accessing and Mastering the Record on Appeal
Once the record is transferred, you will receive an email from the Virginia Court of Appeals. That email is important for several reasons: it contains the briefing deadlines, and it tells you whether the record is electronic and thus whether a Joint Appendix will be required (see Rule 5A:25(a)). And if it is electronic, it will include a link to download the record.
Whether your record is in electronic form and downloaded, or in paper form so you end up with a Joint Appendix, your job is the same: master it. Know it inside and out, better than your opponent and better than the court. Be ready to identify important page numbers, dates, and contents as your case may require. This is true for both your brief and oral argument: the Court does not know the case like you do, so know it best and help them—in your brief and argument—to locate the parts of the record that help you win and help them write their opinion.
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Finally, because it is the most crucial piece of the record, please file a transcript. Have you heard that one before?