Given the Expansion of the Virginia Court of Appeals, It Is Time to Re-think the Composition of Your Trial Team

Virginia appellate jurisdiction experienced a seismic transformation beginning on January 1, 2022. As of this date, the jurisdiction of the Virginia Court of Appeals has drastically expanded to include an appeal of right for most civil actions.

Our Appellate Practice Team colleagues, Jeffrey Geiger and Karissa Kaseorg, previously detailed the expanded appellate jurisdiction of the Court of Appeals’ and provided an excellent description of the transformation over time.

The prior regime required an appellant to first obtain a writ, i.e., permission, from the Supreme Court of Virginia to pursue an appeal. Now, civil appeals proceed directly to the merits, removing the need to obtain permission. This expansion will most likely result in more appeals and those facing pending litigation must plan accordingly. One foreseeable benefit to the expansion of the appellate jurisdiction is that more cases will result in written opinions and legal decisions, allowing more opportunity for the Virginia Court of Appeals to delve into and develop legal areas that the Supreme Court of Virginia generally avoided. Given this reality, it is also time to reengineer trial teams and consider including appellate specialists earlier to solidify appellate positions and arguments.

Framing and Preserving Issues During Trial         

Including an appellate attorney to the trial team early in the litigation process will help correctly identify and frame issues for any potential appellate proceeding An appellate attorney, for example, can focus on ensuring an adequate record on appeal and identifying potential appeal pitfalls in real time when they must be either corrected or error preserved. One fruitful area is trial court rulings surrounding discovery disputes. With every first civil appeal now being heard as a matter of right, trial teams are well counseled to focus on preserving not only the record, but also legal discovery objections. Gone are the days in which generic objections might have been sufficient. The new appellate landscape now requires thoughtful and purposeful planning to preserve the record and all objections to significant rulings — including discovery rulings — to provide the best platform for success on appeal.

Maintaining the Trial Plan

As an additional benefit, including an appellate lawyer on the trial team builds structure and consistency for the overall trial plan. Often trial lawyers are rightly focused on the minutia of convincing a judge or the jury that the client’s legal arguments and factual positions are sound, proper, and correct. An appellant attorney, with a broader view of the case, can help maintain the trial plan as viewed through an appellate lens with the focus of convincing appeal judges, not jurors, of their key arguments.

With the expansion of the appellate jurisdiction, retaining an appellate attorney on your trial team can be more important than ever before.

If you have questions about an appellate issue, ranging from litigation planning to direct appellate advocacy, contact David Tait, David Hearn, or another member of our Appellate Practice Team.