Appeals in Virginia
In Virginia, the Supreme Court and Court of Appeals hear cases on appeal, depending on the type of case. D'Lima Law, LLC can help you appeal a negative decision at trial or an administrative hearing - or defend you against an appeal by the other party if you won at trial.
Appeals give a party to a lawsuit or an administrative hearing a chance for another court to correct legal errors. A successful appeal can result in a reversal of the decision below, or a new trial.
Appeals are very different from trials. There are no witnesses present, and no new evidence can be presented. The appellate decision is based only on what happened in the trial court or administrative hearing. This is because the appellate courts don't make decisions on the facts. Only errors in the substantive law or procedure are reviewed.
D'Lima Law, LLC provides representation in appeals, whether you are the party wishing to have errors corrected in your case, or you were successful at trial and are now defending the decision from an appeal by the other party.
Where will the appeal be heard?
Appeals will be heard by either the Virginia Court of Appeals or the Virginia Supreme Court, depending on the type of case that is being appealed. Below is a table of the most common sources of appeals, and which court hears the appeal.
|Source||Virginia Supreme Court||Virginia Court of Appeals|
|Circuit Court (Trial Court) - Civil||✓|
|Circuit Court (Trial Court) - Criminal||✓|
|(Most) Court of Appeals Decisions||✓|
|Administrative Agency Decisions||✓|
|State Corporation Commission (SCC) Decisions||✓|
|Workers’ Compensation Commission (VWC) Decisions||✓|
For some types of cases, the appellate court has the discretion to decide whether or not it will hear the case. For example, the Virginia Supreme Court can decide which appeals from civil trial decisions it will hear.
Is it difficult to win on appeal?
Winning on appeal can be difficult. First, where the appellate courts have discretion, most appeal requests are refused. The Virginia Supreme Court reported that in 2017, it granted 112 appeal petitions and refused 1,162. Considering just civil trial appeals, the Court decided to take 80 cases, while it refused 383 (accepting just 17.3% of cases).
Once the Virginia Supreme Court decides to hear an appeal, it shows a slight preference for affirming the decision below. The Court reported that in 2012, 52.1% of lower court judgments were affirmed, and 42% of decisions were reversed or remanded; the remaining percentage is cases where the Court was asked by a federal court to answer a question about Virginia law. Leaving out the last category of cases, the statistics change to 55.4% of lower judgments affirmed (62 out of 112 decisions), and 44.6% of lower decisions reversed or remanded (50 out of 112 decisions).
In addition, appellate procedure is very complex, with a lot of rules to follow and deadlines to meet. You need an experienced appellate attorney to make sure that you have the best chance of winning (or defending a win) on appeal.
How long do I have to file an appeal?
Deadlines to start the appeal process can be short.
In a civil trial in Circuit Court, a party has 30 days after the entry of a final or appealable judgment or order to file a "Notice of Appeal" (Virginia Supreme Court Rule 5:9). This Notice of Appeal is filed with the Circuit Court. Motions for a new trial or motions to reconsider a decision do NOT stop this 30-day period from running.
For appeals from the State Corporation Commission (SCC), a party has 30 days to file a Notice of Appeal with the clerk of the SCC (Virginia Supreme Court Rule 5:21).
What happens during an appeal in Virginia?
Regarding the procedure of an appeal from a civil trial in Circuit Court to the Virginia Supreme Court:
After the Notice of Appeal is filed, the party appealing must get and file transcripts of the all the relevant trial hearings within 60 days of the date of the decision being appealed (Virginia Supreme Court Rule 5:11). A written statement of facts can be filed instead within 55 days.
Within 90 days of the date of the order being appealed, the party appealing will file a Petition for Appeal with the Virginia Supreme Court (Virginia Supreme Court Rule 5:17). The Petition's purpose is to convince the Court to take the appeal. The party appealing can ask to make an oral argument before a "writ panel" on why the Virginia Supreme Court should accept their Petition for Appeal and take the case. The other party can file a Brief in Opposition to the Petition for Appeal within 21 days (Virginia Supreme Court Rule 5:18). The party appealing then has 7 days to reply to this opposition (Virginia Supreme Court Rule 5:19).
If the Virginia Supreme Court refuses the Petition for Appeal, the party appealing can ask the Court to rehear the Petition within 14 days (Virginia Supreme Court Rule 5:20).
If the Virginia Supreme Court grants the appeal, each party will prepare a long, detailed brief regarding their legal arguments. The briefs are the most important, and time-consuming, part of the legal representation in an appellate case. Comprehensive review of the transcripts and case records below, as well as extensive legal research, are required for preparing a brief, which can be as long as 50 pages.
The party appealing has 40 days from the granting of the appeal to file their Opening Brief, and the other party then has 25 days to file their own brief (Virginia Supreme Court Rule 5:26). The party appealing can file a reply brief within 14 days.
Other groups or persons who aren't party to the case, but for some reason are interested in the outcome of the case, can ask the Court permission to file a "brief amicus curiae" (Virginia Supreme Court Rule 5:30). Briefs amicus curiae are often filed in cases involving political or civil rights issues.
Oral argument provides the parties a chance to present their case to the Court and for the judges to ask questions about the case (Virginia Supreme Court Rule 5:33). Attorneys for the parties will prepare an argument to present to the judges, with the party appealing going first. Judges can interrupt at any point to ask a question, and often the oral argument develops into a question-and-answer format between the attorney and the judges. Oral arguments are short, lasting no more than 15 minutes for each side. Oral arguments can be waived.
If a party does not like the decision made by the Virginia Supreme Court, that party can ask the Court to rehear the case by filing a written notice within 10 days of the decision (Virginia Supreme Court Rule 5:37). If the case involves a federal or Constitutional question, the case can also be appealed to the U.S. Supreme Court.
How much do Virginia appellate attorneys charge?
The cost of an appeal can vary depending on the complexity of the issues involved. The amount of transcripts of prior hearings needed, and other copies of court records, can also affect the cost.
D'Lima Law, LLC offers clients a free, 20-minute consultation to discuss the possible appeal. D'Lima Law will then perform preliminary legal research based on the information you provided at the consultation on a flat fee basis, and provide an opinion whether we believe an appeal is worthwhile.
After the preliminary review, D'Lima Law, LLC can also provide you a quote on the cost of our services for representing you in the appeal. This cost may be flat fee or hourly, depending on the complexity of the case.
|Initial 20-Minute Consultation:||Free|
|Preliminary Review and Opinion:||$1000|
|Appeal Representation:||Flat Fee or Hourly
(Hourly rate is $200/hour)
Need a Virginia appellate attorney?
Appeals are complex and involve a deep review and understanding of the law. A knowledgeable Virginia appeals attorney can represent your side of the case and give you the best chance of a favorable outcome.