Appeals

Question 1

what are the two appellate courts in VA?

Answer 1

1) Court of Appeals of Virginia - intermediate appellate court
2)Supreme Court of Virginia - highest appellate court

Question 2

summary of the biggest changes that have been made for purposes of the bar exam?

Answer 2

appeals in both criminal and most civil cases are appeals by right (mostly) and not by petition to the Virginia Court of Appeals. Also virtually all appeals (inc civil cases) go first to the CoA by right; the losing party may then petition the Virginia Supreme Court to review the Coa decision if they lose at coa level

(before most civil appeals went directly to the SC by petition)

Question 3

the old way?

Answer 3

1)file a notice of appeal with the CC
2)file a petition for appeal to the Virginia Supreme Court

Question 4

NOWWWWWW?

Answer 4

1) file a notice of appeal with the CC
2)file an appeal brief in the Virginia Court of Appeals

Question 5

under the new way what is the original jurisdiction for CoA?

Answer 5

writs of mandamus, prohibition, and habeas corpus in any case over which the court of appeals would have appellate jurisdiction; and writs of actual innocence based on non-biological evidence

Question 6

when must the notice of appeal be filed?

Answer 6

filed within 30 days after entry of the final judgment or appealable order

Question 7

how is the notice of appeal filed?

Answer 7

1)file in the clerk’s office of trial court, tribunal, or commission from which appeal is taken
2)copy of notice of appeal is sent to all opposing counsel, parties not represented by counsel, the Clerk of the Court of Appeals, and (in criminal cases) the Attorney General

Question 8

what is the filing fee for the notice of appeal?

Answer 8

notice must be accompanied by a $50 filing fee

Question 9

when is a notice of appeal not required?

Answer 9

in most interlocutory appeals

Question 10

what are the special rules in criminal appeals?

Answer 10

now that the Attorney’s General’s Office will be involved in criminal appeals from the outset of the appeal, the copy of the notice must be served on the Office of the Attorney General.

within 14 days of the filing of the notice of the appeal, the AG will file a notice of appearance and serve the notice of appearance on counsel for the appellant

Question 11

must a party file an appeal bond?

Answer 11

a party filing a notice of appeal must simultaneously file in the trial court, etc. an appeal bond if required, and then give notice in writing to counsel for appellee (not required in criminal appeals, $500 bond or irrevocable letter of credit req in civil appeals)

Question 12

new rule for written statements?

Answer 12

written statements of fact are now due 60 days (not 55 days) after entry of the final or appealable order

Question 13

what happens if the appeal is filed in the wrong court?

Answer 13

must transfer the matter to correct appellate court, it is not dismissed or a fatal error

Question 14

what are the time deadlines?

Answer 14

when a time period is measured from the date of entry of the order of the trial judge in cc, the clock is not stopped by filing of any post-trial motions, inc a notice of appeal

Question 15

to preserve an issue for appeal, what must the party do?

Answer 15

promptly object to the error and stated the legal grounds for the objection on the record. failure to do so will generally result in the issue being waived

Question 16

under what circumstances can an error be considered on appeal even without proper objection (3)?

Answer 16

-if issue goes to jurisdiction of the trial court
-for good cause shown, or
-to attain the ends of justice

appellate courts are very reluctant to grant the “good cause” or “ends of justice” exceptions

Question 17

what is a proffer?

Answer 17

when evidence is excluded, the party offering the evidence must get the excluded evidence into the record in order to preserve the issue for appeal

Question 18

are assignments of error required?

Answer 18

both appellate courts require, in any petition for appeal and in any opening brief, that the appealing party include assignments of error, specifying what errors it is claiming that the trial court made.

each error must include an exact reference to the page of the transcript, written statements of facts, or other document where it shows the error has been preserved

Question 19

what is the standard of review for factual determinations?

Answer 19

appellate court will give great deference to the trial judge’s

Question 20

what is the standard of review for an issue of law?

Answer 20

appellate court gives no deference and looks at the issue de novo