Which court hears your appeal

Virginia has two appellate courts: the Supreme Court of Virginia and the Court of Appeals of Virginia. Since January 1, 2022, almost every appeal from a circuit court goes first to the Court of Appeals, and most civil and criminal appeals are heard there as a matter of right rather than by petition.

A few kinds of cases go directly to the Supreme Court, including habeas corpus proceedings, appeals from the State Corporation Commission, and attorney discipline cases. After the Court of Appeals decides a case, a party may ask the Supreme Court to review it.

Statutes: Va. Code § 17.1-405 (civil appeals) and § 17.1-406 (criminal appeals). Appeals from federal district courts in Virginia go to the U.S. Court of Appeals for the Fourth Circuit, which has its own rules and deadlines.

How an appeal works in the Court of Appeals of Virginia

1. File the notice of appeal

   The first step is a written notice of appeal filed in the circuit court clerk’s office within 30 days after the final order is entered, with copies to opposing counsel and the Clerk of the Court of Appeals. If the notice is late, the appeal is almost always lost permanently. In limited circumstances the final order can be suspended or vacated before that period runs, but you should never count on it.

2. File the transcript

   Next, the transcript of the trial must be filed. The rules allow a written statement of facts instead. It can cost less up front, but it often costs more in procedure and attorney time, and it is risky: it is hard to anticipate every fact the judges will want to see, the parties may disagree about what happened, and if an important fact is left out, the appeal can be lost. A transcript avoids those problems.

3. Brief the case

   The opening brief is the most important document in the appeal. It identifies the errors the trial court made (the “assignments of error”) and explains, with case law, why the ruling or verdict should be reversed. Judges want to know how the trial court’s rulings conflict with established law, and the ability to compare your case to prior decisions can make the critical difference. The brief must also clear the procedural hurdles, such as preservation of error, that can block an appeal before the merits are reached. The other side then files a response brief; in criminal cases, the Commonwealth is represented by the Attorney General’s office.

4. Oral argument

   In the Court of Appeals, cases are heard by a panel of three judges. Oral argument is the only time you speak directly with the judges, so it is important to answer their questions directly; evasive answers waste the opportunity. Argument before the Supreme Court of Virginia is very formal, and the justices pepper counsel with questions. Our attorneys have been through both many times.

5. The decision and further review

   The court may affirm or reverse, in whole or in part. When it reverses, it often sends the case back (remands) to the trial court, sometimes for a new trial. A party unhappy with a panel decision may ask the full Court of Appeals to rehear the case en banc, or may petition the Supreme Court of Virginia, which decides whether to take the appeal.

Why you need an appellate attorney

The appeals process is full of procedural requirements, and many of them are jurisdictional and require strict compliance. Appeals must comply with the Rules of the Supreme Court of Virginia and every applicable statute. The appellant is responsible for making sure the transcript is filed on time and that every notice is properly filed and served.

An experienced appellate attorney knows how to clear those hurdles and how to present your case to an appellate court. Many good trial attorneys do not enjoy appellate practice and welcome an appellate lawyer to assist on the appeal or take over the representation. We can represent you directly or work with your trial attorney.

Our appellate attorneys

The attorneys of Thomas H. Roberts & Associates, P.C. care about the law and about justice, have long experience in the courts of Virginia, and are accessible to their clients.