As always, before reading this post please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Most people with even the most basic of knowledge of our court system know that when you lose in a trial court, the option exists to appeal the ruling to the higher court. Unfortunately, most people's knowledge starts and ends there. Many people do not know when to appeal, to what court to appeal, or how an appeal actually functions. I hope to begin to discuss that today.
The topic of appellate litigation is very complicated, and will probably warrant many posts from me. For my first post on the topic, however, I wanted to do a quick and dirty overview. As a result, know that this post is very limited in terms of what it covers. Today I will be covering what you appeal to what court, what kind of lawyer you need in each court, what kind of hearing or trial will happen at the appellate level, and appeal bonds (an amount you have to pay to appeal). I will also cover the difference between appeals "of right" and "petitions for appeal."
What Kind of Attorney Should I Have?
While it may not be obvious, not every trial attorney actually practices appellate litigation. Moreover, there are many rules and procedures in the various appellate courts that would make it very dangerous to hire an attorney who does not have much experience in appellate practice. As a result, it may be worth it to consider hiring someone who actually calls themselves an appellate litigator. There are two kinds of appellate litigators - ones who exclusively do appeals, and ones who regularly do appeals, but also do trials. The ones who exclusively do appeals will generally know the ins and outs of the appellate system better. The ones who do both will have less thorough knowledge of the appellate litigation system, but still usually enough to get through the pitfalls, and can bring the benefit of knowing more about the specific fields of law in which they do trial practice.
As an attorney who practices both appellate and trial litigation, I will admit to being biased in favor of such attorneys. Nonetheless, some of the exclusively appellate litigation attorneys I know are unbelievably good at what they do - and best of all, if it's an area of law they are unfamiliar with, they'll usually tell you up front. Ultimately, you have to decide what is best for you.
As a final note, I am discussing here appeals to the Court of Appeals and Supreme Court of Virginia, not appeals to the Circuit Court, for reasons that will become obvious below.
Who Appeals to What Court?
As you may glean from above, in Virginia we have three courts that can be considered "appellate courts" - your local Circuit Court, the Virginia Court of Appeals, and the Supreme Court of Virginia. Hovering over them all, of course, is also the U.S. Supreme Court.
Practically any judgment can be appealed. There are exceptions, and the rule that a judgment must be "final" (a rule probably worthy of its own post) before it can be appealed make some rulings practically unappealable, but at the end of a case, you can pretty much always file an appeal. Appeals go as follows:
Any criminal or civil case from the Juvenile and Domestic Relations District Court gets appealed to the local Circuit Court. Any criminal case from the General District Court gets appealed to the local Circuit Court. Any civil case from the General District Court, where there is a difference of at least $50 between what the appellant wants and what was awarded, gets appealed to the local Circuit Court. Any decision by a Virginia or local administrative agency (not including the Workers Compensation Commission) gets appealed to the local Circuit Court.
Any criminal case except for death penalty cases in the Circuit Court gets appealed to the Court of Appeals. Domestic Relations (family law) cases in the Circuit Court get appealed to the Court of Appeals. Decisions by the Circuit Court on appeals of administrative agency rulings get appealed to the Court of Appeals. Any decision by a Circuit Court regarding the medical or mental health treatment of a prisoner gets appealed to the Court of Appeals. Some decisions by the Circuit Court relating to religious freedom issues get appealed to the Court of Appeals. Finally, any ruling from the Workers Compensation Commissions gets appealed to the Court of Appeals.
Any imposition of the death penalty in the Circuit Court gets appealed to the Virginia Supreme Court. All civil cases in the Circuit Court other than domestic relations (family law), administrative agency appeals, and prisoner health treatment decisions get appealed to the Virginia Supreme Court. Finally, all decisions by the Court of Appeals can be appealed to the Virginia Supreme Court.
Lastly, any Virginia Supreme Court decision, Court of Appeals decision where a petition of appeal was denied by the Virginia Supreme Court, or Circuit Court decision where a petition of appeal was denied by the Court of Appeals and/or Virginia Supreme Court, can be appealed to the United States Supreme Court.
Appeal "of Right" vs. "Petition for Appeal"
So, reading the above, you might think our appellate courts get somewhat flooded by appeals. This is not the case, however, because many appeals are not appeals "of right," but rather petition appeals. An appeal of right is an appeal that the appellate court must hear - so they get a full blown appeal in front of them. A petition for appeal, however, allows the court to decide, usually based on the decision of a small number of judges, whether or not a case warrants hearing a full appeal. The denial of a petition, then, has no precedential value for the future, and does not mean the appellate court is saying the lower court got it right - just that it does not wish to hear the appeal.
So, which cases are appeals "of right" versus "petitions"? The basic breakdown for that is as follows:
All appeals to the local Circuit Court are appeals of right.
Appeals to the Court of Appeals of domestic relations cases, administrative agency decisions, and appeals from the Workers Compensation Commissions are appeals of right. All other appeals to the Court of Appeals (including criminal convictions) are petition appeals.
Appeals to the Virginia Supreme Court from the imposition of the death penalty are appeals of right. All other appeals to the Virginia Supreme Court (including non-domestic relations civil cases) are petition appeals. It's also worth noting that in order for a petition for appeal from the Court of Appeals to the Virginia Supreme Court to be granted, the Virginia Supreme Court must additionally find that the issue from the Court of Appeals is one of significant importance and precedential value to Virginia law - so Court of Appeals cases are very rarely successfully appealed to the Virginia Supreme Court.
Finally, while the system is not identical federally, the United States Supreme Court is almost entirely a "petition" type system. They hear less than 1% of all cases appealed to them, so your chances of getting heard are pretty slim. Moreover, you have to have an issue relating to federal law (so not "the court is misinterpreting this state law") to even get considered by the Supreme Court.
Types of Appellate Hearings
So, the next question to consider is - what kind of hearing will there be on appeal? Appeals to the United States Supreme Court, Virginia Supreme Court, and Court of Appeals are very similar. An attorney will appear before a panel of judges and make arguments for a set period of time. Evidence will not be taken, witnesses will not be on the stand - usually the clients aren't even there. This is one of the reasons why having an appellate litigator as your attorney - it requires a different skill set than a trial litigator.
Appeals to the Circuit Court are different. These appeals are called trials "de novo." In other words, you have a whole new trial in the Circuit Court. The Circuit Court is not even supposed to be told what happened in the lower court (though usually they can figure it out) and nothing from the lower court can be used as evidence, except for prior inconsistent statements if a witness says something in the Circuit Court after having said something different below. This is why continuing to have a trial lawyer at the Circuit Court generally makes sense.
Appeal Bonds
One of the realities of the modern court system is that our court administrators, legislators, and just about everyone else wants to decrease the volumes of cases. As a result, we have a built-in system that helps discourage appeals, but also strongly favors plaintiffs over defendants in civil cases. This is the appeal bond system.
In any appeal, you must pay an appeal bond. This is money paid to the court so that it is available if the court rules against you on appeal. For plaintiffs, this bond is usually pretty low - about $100-200 in appeals to the Circuit Court, and $500 in appeals to the Court of Appeals and Virginia Supreme Court. For defendants, however, they generally have to pay the full amount they were ordered to pay by the lower court in appeals to the Circuit Court (if you just lost a child support ruling, for example, which found you now owed an arrearage of $50,000, you've got to come up with $50,000 to appeal that ruling). Appeals to the Court of Appeals and Virginia Supreme Court can still be bonded at $500, but that does not suspend the lower court order (so garnishment of your wages can still happen). If you want to actually suspend the order, you again have to come up with the full amount.
Conclusion
Today's post covered some of the very basics in appellate litigation in Virginia. In the future I hope to delve into more detail about the various types of appeals to the various courts. If you are planning to file an appeal, or defending against an appeal, and would like some legal assistance, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
No comments:
Post a Comment