Rules

At dinner a few weeks ago, I asked some former co-workers what my next blog topic should be and without missing a beat, in unison, they all said, “rules!” Rules. You would think that topic would be unnecessary. After all, appellate advocacy is not easy. There are so many things that can go wrong with an appeal. There are so many choices we need to make when researching the law and writing the brief. One would think that the one area where appellate attorneys would not need help is with court rules. After all, the rules tell us exactly what to do … if you read them and follow them.

Yet I know, as I am sure any appellate attorney knows, that there are numerous cases dismissed each year because of an attorney’s failure to follow rules. In the Court of Appeals of Virginia, for instance, 180 appeals were dismissed in 2011 and 157 appeals were dismissed in 2012 for some procedural defect or another. See Whitt v. Commonwealth, 739 S.E.2d 254 (Va. Ct. App. 2013) (en banc).

Anecdotally, I have lost count of the number of cases I have seen dismissed for failure to follow one rule or another. Why does this happen? I have heard attorneys admit that they did not check the rules prior to filing a brief, or that they were unaware of a particular rule. When discussing this phenomenon, my colleagues expressed similar experiences.

Why take the risk of dismissal? The rules are publicly available, and easily accessible. Most rules are easy to understand, and in my experience, questions are readily answered by helpful clerks and experienced appellate attorneys. The cost is high, as the person who pays the price for an attorney’s failure to follow the rules is the client, who has no control over counsel’s actions in this regard.

In fact, the risk is so high, that in Whitt, the Court of Appeals of Virginia decided that in certain instances it is “more just, prompt, and economical,” to allow an appellant to amend a brief, rather than to dismiss the appeal. Id. at 264. In doing so, the court noted that it did not condone violating court rules, but it recognized that dismissal is a harsh sanction for a client that bears no responsibility for the attorney’s failure. Id. On the other hand, on the same day the court issued the Whitt decision, the court also dismissed an appeal where counsel had been given multiple opportunities to correct a defect, but had failed to do so. See Brooks v. Commonwealth, 739 S.E.2d 224 (Va. Ct. App. 2013) (en banc).

Why risk losing an appeal before you even begin? If you haven’t done so already, take up a little light reading this evening and familiarize (or reacquaint) yourself with your local appellate court rules.