Things to consider when choosing appellate counsel in Virginia

How do you choose the right law firm for your appeal in Virginia?

Virginia Supreme Court

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1) Find an attorney who is interested in your case.

You don’t want an attorney that views your case as simple one more case, or merely the funding source to send his children to a nice school in the West End.   You want an experienced attorney that is interested in your case.

2) Find an attorney that will review with you the timelines for your case.

In appeals many of the deadlines are critical.  You have limited time to file the appeal. You have limited time to file your transcript.  Failing to timely file the transcript may result in the dismissal of the appeal petition.   For example, “McGuireWoods, LLP … as legal counsel for Wintergreen, filed a notice of appeal for Wintergreen, but failed to ensure that the trial transcripts were timely filed. Because the issues on appeal required consideration of the transcripts, this Court dismissed Wintergreen’s petition for appeal.” Wintergreen Partners, Inc. v. McGuirewoods, LLP, 280 Va. 374, 376 (Va. 2010) citing Wintergreen Partners, Inc. v. Grigg, Record No. 042956 (July 7, 2005) (unpublished). You have limited time to file your petition.   Your deadlines are too important not to be discussed with you.

3) Find an attorney that will discuss the appropriate standard of review that the appellate court will be using.

At the appeal level, one of the first tasks to be undertaken is to determine the appropriate standard of review that the court should employ.  There are different standards that may apply.

When the appeal presents purely legal questions of statutory and constitutional interpretation the court will review the matter de novo. L.F. v. Breit, 285 Va. 163, 176 (2013) citing Copeland v. Todd, 282 Va. 183, 193, 715 S.E.2d 11, 16 (2011); Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d 402, 404 (2011).

The standard of review for court’s sustaining a demurrer or granting summary judgment are similar issues of law which the court reviews de novo or fresh.

If the appeal seeks to challenge a circuit court’s sustaining of a demurrer, then the standard of review is as follows:

A trial court’s decision sustaining a demurrer presents a question of law which the appellate court reviews de novo. Furthermore, like the trial court, the appellate court is confined to those facts that are expressly alleged, impliedly alleged, and which can be inferred from the facts alleged.  Harris v. Kreutzer, 271 Va. 188, 195-96, 624 S.E.2d 24, 28 (2006).

The standard of review applicable to the circuit court’s sustaining of a demurrer is well established: A demurrer tests the legal sufficiency of a [complaint] and admits the truth of all material facts that are properly pleaded. The facts admitted are those expressly alleged, those that are impliedly alleged, and those that may be fairly and justly inferred from the facts alleged.  The trial court is not permitted on demurrer to evaluate and decide the merits of the allegations set forth in a [complaint], but only may determine whether the factual allegations of the [complaint] are sufficient to state a cause of action.

  

4) Find an attorney that has experience.

Practicing law is a constant education.   You probably want an attorney that has experience, one that can say “This ain’t my first rodeo!”

5) Find an attorney whose fees are reasonable for the work to be done.

Legal fees are significant in appeals.  Considerable time must be spent reviewing the record and in legal research for precedent to support the claim that the outcome of the trial or hearing should be reversed, modified or affirmed.  You should ask the attorney that you are considering engaging to give you some examples of fees charged in other appeals worked on by the law firm.

 6) Find an attorney with whom you are comfortable and confident.

While there are a lot of technical legal concepts that your attorney should understand better than you, much of law is just plain common sense.  Clients are a valuable source of information — if you believe something in the trial court was wrong, you should be able to discuss this with your attorney.

He should be willing to discuss with you those impressions and able to provide to you an explanation of whether the law supports or rejects those impressions.   You should be both comfortable and confident in the lawyer you choose to do your appeal.

 7) You should discuss your appeal with a lawyer with the firm of Thomas H. Roberts & Associates, P.C.

The law firm of Thomas H. Roberts & Associates, P.C. has attorneys that are interested in the law and justice.  They have experience in the courts of Virginia.  They are accessible.

Just a few of the appeals by this law firm:

Civil Rights – Torts

Cromartie v Billings, 298 Va. 284 (2020) – (Oral Argument – Jonathan M. Arthur, Esq.)(Reversal and remand where trial court erroneously granted police officer’s motion to strike civil rights claims for excessive use of force under 42 USC § 1983 based upon qualified immunity and unlawful search under Va. Code § 19.2-59 based upon sovereign immunity)

Liverman v City of Petersburg, 844 F.3d 400 (2016) (Oral Arguments – Andrew T. Bodoh, Esq.) (1st Amendment violations by City of Petersburg Police Department)

Cutts v Peed, 17 Fed. Appx 132 (2001)(unpublished)(rejected sheriff’s interlocutory appeal of denial of qualified immunity where deputies claimed retaliation under the 1st Amendment for opposing racial harassment in the Fairfax Sheriff’s Office)

Smith v Commonwealth, 286 Va. 52 (2013) (Virginia breached plea agreement with unlawful taking without compensation by exercise of police powers to reclassify sex offence conviction – 1st time court acknowledged Virginia Constitution’s taking clause extended beyond real property)

Fobian v Storage Tech. Corp., 164 F.3d 887 (1999)(Vacated and remanded – the trial court erred by finding it did not have jurisdiction to hear FRCP 60(b) motion to vacate judgment on the basis of fraud and newly discovered evidence)

Brown v ABF Freight Sys., Inc. 183 F.3d 319 (1999)(Collective bargaining agreement did not incorporate federal anti-discrimination laws into agreement and therefore employee not required to arbitrate ADA claims)

Goad v Va. Bd. of Med. 40 Va. App 621 (2003)(reversal of revocation of professional medical license where no evidence of standard of ethics that were violated and record devoid of evidence showing doctor performed any act likely to deceive, defraud or harm the public)

Corker v Jones 1992 U.S. App LEXIS 2328 (1992)(unpublished)(4th Circuit failed to reverse stating that police officers had probable cause to arrest a mildly mentally disabled known cross-dresser with a press pass outrageously affirming that he was unable to explain how he obtained a press pass, did not appear to be prepared to act as a reporter, had no identification to establish connection to a “news organization, was known as an eccentric person with a criminal record — since when would any of these rob him of his 1st Amendment right of being a member of the “press”??)

Domestic:

Winters v Winters, 73 Va. App 581 (2021) – Oral Arguments – 9/14/2021 (Primary issue in custody, visitation & support is best interest of children, all other issues subordinate)

Mulvey v Rhoads, pending (2022) – Oral Arguments – Thomas H. Roberts – 1/19/2022 (Constitutional Rights in Parent-Child Relationship Should Not Be Terminated without finding upon clear and convincing evidence of unfit parent and detriment to child of continuing relationship)

Tort – General

Padula-Wilson v Landry, 298 Va. 565 (2020)(Defense of Guardian ad Litem against suit by disgruntled parent)

O’Brien v Everfast, Inc., 254 Va. 326 (1997)(Reversed and Judgment for O’Brien, where shopkeeper created danger, claimant not required to prove notice)

General

Harmon v Ewing, 285 Va. 335 (2013) – (FOIA Appeal Issues)

Brubaker v City of Richmond, 943 V.2d 1363 (1991)(Reversed in part, vacated in part – where trial court improperly sanctioned young attorney where he was correct on most of the issues of law)

Martin v Univ. of Va. Med. Ctr., 2007 Va. App. (2007)(unpublished) (Worker’s Compensation Commission finding that claimant failed to adequately market her residual capacity was reversed)

Rector v Wykle, 2000 U.S. App LEXIS 23258 (2000)(vacated and remanded where trial court erroneously used 42 USCA § 1988 factors in determining sanctions under FRCP 11)

Criminal Defense

Artis v Commonwealth, 2014 Va. App LEXIS 323 (2014)(unpublished) (conviction for trespass reversed)

Roberts v Clarke, 1994 Va. LEXIS 300 (1994)(reversing and vacated trial court sanction)

Contact the Law Firm

Thomas H. Roberts & Associates, P.C.
105 S 1st Street
Richmond, Virginia 23219
(804) 783-2000 

Fourth Circuit Court of Appeals

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.