Virginia Supreme Court Rules: Appeals, Record, and Rehearings

The Rules of the Supreme Court of Virginia set the procedures that govern every court in the Commonwealth, and the Supreme Court itself is the strictest arena in which to apply them. The Supreme Court’s authority to write these rules comes from Article VI, Section 5 of the Virginia Constitution and Virginia Code § 8.01-3, and the rules carry the force of law.1Virginia Court System. Rules of Supreme Court of Virginia They cover how long a trial judge keeps control of a final order, how to get a case to an appellate court, what a petition must say, and even the font size on the brief. Miss one of them and the case can end before any judge reaches the merits.

How the Rules Are Organized

The rules are divided into numbered Parts. Part One contains general rules that apply across all courts, including pleading standards and the 21-day finality rule. Part Two covers equity, Part Three governs civil actions in Circuit Courts, and Part Seven governs General District Courts. Part Five sets out the procedures specific to the Supreme Court, and Part Five A does the same for the Court of Appeals.2Supreme Court of Virginia. Rules of the Supreme Court of Virginia3Supreme Court of Virginia. Rule 5:1 – Scope, Citation, Applicability, and General Provisions

Any single case can run through several Parts. A Circuit Court trial follows Part Three, the appeal to the Court of Appeals follows Part Five A, and a further appeal to the Supreme Court follows Part Five. Service and formatting requirements overlap, but filing deadlines and procedural steps change at each level.

One statutory limit sits above all of this: the General Assembly can override any rule by passing a statute, and where a rule conflicts with a statute, the statute controls.4Virginia Code Commission. Virginia Code 8.01-3 – Supreme Court May Prescribe Rules

Rule 1:1 and the 21-Day Finality Window

Rule 1:1 is the single most consequential rule in Virginia practice. A final judgment remains under the trial court’s control for 21 days after the date of entry, and no longer.2Supreme Court of Virginia. Rules of the Supreme Court of Virginia After day 21, the trial judge cannot modify, vacate, or suspend the order. The date of entry is the date the judge signs the order, on paper or electronically under Rule 1:17.5McGuireWoods. Rule 1:1 – Finality of Judgments, Orders and Decrees

An order is “final” when it resolves every claim and every cause of action against every party, grants all the relief the court intended, and leaves nothing for the court to do except carry out the decision. Orders sustaining a demurrer with prejudice or granting summary judgment qualify even without the word “dismissed.”5McGuireWoods. Rule 1:1 – Finality of Judgments, Orders and Decrees If you want the trial court to reconsider anything, you have to act before day 22.

Getting a Case to the Supreme Court

The Supreme Court of Virginia has largely discretionary jurisdiction. It chooses the cases it hears, and most cases must first pass through the Court of Appeals.

The notice of appeal is filed with the trial court clerk, with a copy transmitted to the Clerk of the Court of Appeals, within 30 days of the final judgment.6Virginia Code Commission. Virginia Code 8.01-675.3 – Time Within Which Appeal Must Be Taken After the Court of Appeals decides the case, a party unhappy with that decision has 30 days to petition the Supreme Court for an appeal.7Virginia Code Commission. Virginia Code 8.01-671 – Time Within Which Petition Must Be Presented

In the narrow situations where a direct appeal to the Supreme Court is allowed, the petition must be filed within 90 days of the order being appealed.7Virginia Code Commission. Virginia Code 8.01-671 – Time Within Which Petition Must Be Presented Extensions are possible for good cause but require a motion and are discretionary.

Interlocutory Appeals

Most appeals have to wait for a final judgment. Before trial, a circuit court can certify a non-final order for immediate appeal if the order involves a question of law with substantial ground for disagreement, no clear controlling precedent, and resolution would be dispositive of a material part of the case. The petition is due within 15 days of the certification order.8Virginia Code Commission. Virginia Code 8.01-670.1 – Appeal of Interlocutory Orders and Decrees Pretrial orders granting or denying sovereign, absolute, or qualified immunity are automatically eligible for immediate review without certification.9Virginia Code Commission. Virginia Code 8.01-670.2 – Appeal of Interlocutory Orders and Decrees; Immunity An interlocutory appeal does not automatically pause the trial court.

What the Petition for Appeal Must Contain

Rule 5:17 sets out what the petition for appeal must include, and the requirements are exacting.10Supreme Court of Virginia. Rules of Supreme Court of Virginia – Rule 5:17 Petition for Appeal The petition is filed directly with the Clerk of the Supreme Court, with the $50 filing fee paid when the petition is presented.11Virginia Code Commission. Virginia Code 17.1-328 – Fees Charged and Collected by Clerk of Supreme Court

Filings now go through the Virginia Appellate Courts Electronic System (VACES). Both the Supreme Court and the Court of Appeals require electronic filing of all pleadings. Self-represented parties can request leave to file on paper. VACES users register through an agency, law firm, or organization, and all documents must be uploaded as text-searchable PDFs.12Virginia’s Judicial System. VACES User Help

Assignments of Error

The assignments of error are the heart of the petition. Under a heading titled “Assignments of Error,” the petition must list clearly and concisely the specific errors in the trial court’s rulings that the party intends to challenge. A generic assignment that the judgment is contrary to the law and the evidence will be rejected.10Supreme Court of Virginia. Rules of Supreme Court of Virginia – Rule 5:17 Petition for Appeal

Each assignment must include an exact reference to the page of the transcript, written statement of facts, or record where the alleged error was preserved in the trial court.13Supreme Court of Virginia. Rules of Supreme Court of Virginia Part Five – Section E, Perfecting the Appeal You cannot raise an issue on appeal that you did not properly object to during trial. A general objection, a late objection, or no objection at all usually waives the issue regardless of how strong the argument looks later. The contemporaneous objection requirement exists so the trial judge has a chance to correct the mistake in real time.

Building the Record

Appellate review is based on the written record. The Supreme Court does not rehear testimony. A complete record requires either a transcript of the trial court proceedings or, when no court reporter was present, a written statement of facts prepared by the parties.

Transcripts and Written Statements

A written statement of facts becomes part of the record when the moving party files it with the trial court clerk within 60 days after entry of judgment, along with a notice that the statement will be presented to the trial judge between 15 and 20 days after the filing date.14Supreme Court of Virginia. Amendments to Rules 1:17, 1:27, 5:11, and 5A:8 – Section: Rule 5:11 Record on Appeal Transcripts follow the same 60-day deadline. Order the transcript early; court reporters charge per page and a long trial can take time to produce.

The Appendix

Rule 5:32 governs the appendix. It must include the initial pleading, all final judgments from courts that have considered the case, testimony germane to the assignments of error, reproducible exhibits, and the granted assignments of error and cross-error. The appendix opens with a table of contents identifying the page where each part begins, and the contents are arranged chronologically.15Supreme Court of Virginia. Rules of Supreme Court of Virginia Part Five – Rule 5:32 Appendix A disorganized appendix forces the Justices to hunt for the evidence that supports your argument.

Brief and Document Formatting

Rule 5:6 sets the physical format for briefs, petitions, motions, and other documents in the Supreme Court.

The cover page must display the style of the case (with the appellant’s name first), the record number, and the submitting attorney’s name, Virginia State Bar number, mailing address, telephone number, fax number, and email address.17Supreme Court of Virginia. Rules of the Supreme Court of Virginia – Section: Rule 5:6(b) Self-represented parties exempt from electronic filing must include the same identifying information.

Length Limits

Under Rule 5:26, an opening brief or appellee’s brief in the Supreme Court cannot exceed the longer of 50 pages or 8,750 words. A reply brief is capped at the longer of 15 pages or 2,625 words.18Supreme Court of Virginia. Rules of Supreme Court of Virginia – Rule 5:26 General Requirements for All Briefs The counts exclude the cover page, table of contents, table of authorities, and certificate. The Court of Appeals is slightly more generous under Rule 5A:19, allowing reply briefs of up to 20 pages or 3,500 words.19Supreme Court of Virginia. Rules of the Supreme Court of Virginia Part Five A – Rule 5A:19 General Requirements for All Briefs Any exception requires a motion and a court order.

Fees and Bonds

The filing fee for a petition for appeal to the Supreme Court is $50, collected when the petition is submitted.11Virginia Code Commission. Virginia Code 17.1-328 – Fees Charged and Collected by Clerk of Supreme Court Transcript preparation, copying and certification charges from the trial court clerk, and attorney fees add up well beyond that.

Virginia distinguishes two bonds on appeal. An appeal bond, sometimes called a bond for costs, is required when filing a notice of appeal of right to the Court of Appeals in a civil case. The standard amount is $500, though the trial court can set a different figure, and it guarantees payment of costs and fees if the appeal fails. A suspending bond, also called a supersedeas bond, is a separate obligation posted when a party wants to stop the winning side from enforcing the judgment during the appeal. The suspending bond covers the full value of the judgment plus one year’s interest and is capped at $25 million regardless of the judgment’s size.20Virginia Code Commission. Virginia Code 8.01-676.1 – Security for Appeal Rule 5:24 requires that all security for appeal conform to the forms set out in the appendix to Part Five.21Supreme Court of Virginia. Rules of Supreme Court of Virginia Part Five – Rule 5:24 Security for Appeal

Service

Every document filed with an appellate court must also be served on the opposing party. A certificate of service must be attached to the filing, identifying the date of service and the method used, whether first-class mail, hand delivery, or electronic delivery through VACES.2Supreme Court of Virginia. Rules of the Supreme Court of Virginia Failing to serve the other side can get a filing stricken and raises due process problems a court will not overlook.

Rehearings

After the Supreme Court issues a decision, a party can file a petition for rehearing under Rule 5:37. The deadlines are mandatory. Extensions are limited to a single 30-day extension that requires at least two Justices to agree there is good cause. No oral argument is permitted on the initial rehearing application. If the court grants rehearing, it may schedule oral argument at its next available session or decide the matter on the written submissions alone.22Supreme Court of Virginia. Rules of the Supreme Court of Virginia – Section: Rule 5:37 Rehearings are rare and typically reserved for situations where the court overlooked a material fact or decided the case on a legal basis the parties never briefed.