Virginia Appeals Law Firm
Virginia appeals lawyers
Winning an appeal takes a different set of skills than winning a trial. Our attorneys have argued before the Supreme Court of Virginia, the Court of Appeals of Virginia, and the U.S. Court of Appeals for the Fourth Circuit, and we regularly work alongside trial lawyers who want appellate help.
Appeal deadlines are short and strictly enforced. If you are thinking about an appeal, contact us now.
Key deadlines
Miss a jurisdictional deadline and the appeal is lost for good. These are the main ones for Virginia state-court appeals.
| General district court to circuit court | Note the appeal within 10 days of the judgment or conviction. You get a new trial (de novo) in the circuit court. In civil cases, the appeal bond and writ tax must be paid within 30 days of judgment; unlawful detainer cases have special rules. Va. Code § 16.1-106 (civil); § 16.1-132 (criminal); § 16.1-107 (bond and writ tax) |
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| Notice of appeal from circuit court | Within 30 days after entry of the final judgment or conviction. Filed with the circuit court clerk, with copies to opposing counsel and the Clerk of the Court of Appeals. Va. Code § 8.01-675.3; § 17.1-407; Rule 5A:6 |
| Court of Appeals filing fee | $50, due within 10 days after the Court of Appeals receives the notice of appeal. Waived for indigent parties and court-appointed counsel. Va. Code § 17.1-418; Court of Appeals FAQ |
| Transcript or written statement of facts | Filed in the trial court within 60 days after entry of the order appealed. Rule 5A:8; Court of Appeals FAQ |
| Opening brief | Due 40 days after the Court of Appeals receives the record. Rule 5A:19; Court of Appeals FAQ |
| Further appeal to the Supreme Court of Virginia | Notice of appeal and petition for appeal within 30 days after the Court of Appeals' decision. Review by the Supreme Court is discretionary. Rules 5:14, 5:17 |
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
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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.
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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.
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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.
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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.
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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
Attorney
Andrew T. Bodoh
Has argued numerous cases before the Supreme Court of Virginia, the Court of Appeals of Virginia, and the U.S. Court of Appeals for the Fourth Circuit.
Attorney
Jonathan M. Arthur
Has argued numerous cases before the Supreme Court of Virginia and the Court of Appeals of Virginia.
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.
Selected appeals handled by the firm
Civil rights and torts
- Cromartie v. Billings, 298 Va. 284 (2020)Oral argument: Jonathan M. Arthur Reversed and remanded where the trial court erroneously struck civil rights claims against a police officer for excessive force under 42 U.S.C. § 1983 on qualified immunity grounds, and for an unlawful search under Va. Code § 19.2-59 on sovereign immunity grounds.
- Liverman v. City of Petersburg, 844 F.3d 400 (4th Cir. 2016)Oral argument: Andrew T. Bodoh First Amendment violations by the City of Petersburg Police Department.
- Cutts v. Peed, 17 F. App’x 132 (4th Cir. 2001) (unpublished) Rejected the sheriff’s interlocutory appeal of the denial of qualified immunity, where deputies claimed First Amendment retaliation for opposing racial harassment in the Fairfax County Sheriff’s Office.
- Smith v. Commonwealth, 286 Va. 52 (2013) Virginia breached a plea agreement by reclassifying a sex offense conviction. The first time the Court acknowledged that the Virginia Constitution’s takings clause extends beyond real property.
- Fobian v. Storage Tech. Corp., 164 F.3d 887 (4th Cir. 1999) Vacated and remanded: the trial court erred in finding it lacked jurisdiction to hear a Rule 60(b) motion to vacate a judgment for fraud and newly discovered evidence.
- Brown v. ABF Freight Sys., Inc., 183 F.3d 319 (4th Cir. 1999) A collective bargaining agreement did not incorporate federal anti-discrimination laws, so the employee was not required to arbitrate ADA claims.
- Goad v. Va. Bd. of Med., 40 Va. App. 621 (2003) Revocation of a medical license reversed where there was no evidence of the ethical standard allegedly violated, and the record did not show the doctor performed any act likely to deceive, defraud, or harm the public.
- Corker v. Jones, 955 F.2d 40 (4th Cir. 1992) (table) The Fourth Circuit declined to reverse, holding that officers had probable cause to arrest a mildly disabled man carrying a press pass because he could not explain how he obtained it, had no identification connecting him to a news organization, and had a criminal record. We continue to believe none of those facts should have cost him his First Amendment rights as a member of the press.
Domestic relations
- Winters v. Winters, 73 Va. App. 581 (2021) Argued September 14, 2021. In custody, visitation, and support, the primary issue is the best interests of the children; all other issues are subordinate.
- Mulvey v. Rhoads, No. 0460-21-4 (Va. Ct. App. Mar. 15, 2022)Oral argument: Thomas H. Roberts Constitutional rights in the parent-child relationship should not be terminated without a finding, on clear and convincing evidence, that the parent is unfit and that continuing the relationship would harm the child.
Torts
- Padula-Wilson v. Landry, 298 Va. 565 (2020) Successful defense of a guardian ad litem sued by a disgruntled parent.
- O’Brien v. Everfast, Inc., 254 Va. 326 (1997) Reversed with judgment for O’Brien: where the shopkeeper created the danger, the injured customer did not have to prove notice.
Other appeals
- Harmon v. Ewing, 285 Va. 335 (2013) Virginia Freedom of Information Act appeal.
- Brubaker v. City of Richmond, 943 F.2d 1363 (4th Cir. 1991) Reversed in part and vacated in part where the trial court improperly sanctioned a young attorney who was correct on most of the legal issues.
- Martin v. Univ. of Va. Med. Ctr. (Va. Ct. App. 2007) (unpublished) Reversed the Workers’ Compensation Commission’s finding that the claimant failed to adequately market her residual work capacity.
- Rector v. Wykle (4th Cir. 2000) (unpublished) Vacated and remanded where the trial court used 42 U.S.C. § 1988 fee factors to determine sanctions under Federal Rule of Civil Procedure 11.
Criminal defense
- Artis v. Commonwealth, 2014 Va. App. LEXIS 323 (2014) (unpublished) Trespass conviction reversed.
- Roberts v. Clarke, 1994 Va. LEXIS 300 (1994) Trial court sanction reversed and vacated.
Considering an appeal?
Because of the short deadlines, contact us as soon as possible after the judgment.
Disclaimer. These materials are for information purposes only. The facts of each case are unique, and the success of one case does not mean another case will have the same outcome. These materials are not legal advice, and you should not act on them without the advice of an attorney. Nothing here creates an attorney-client relationship.
Thomas H. Roberts & Associates, P.C. · 105 S. 1st Street, Richmond, Virginia 23219 · (804) 783-2000