Appeals

Appeals can concern gray areas of law where there is little or no prior guidance concerning how a particular legal issue should be resolved. However, the majority of appeals concern an issue raised by a party that a judge or panel of judges may have misinterpreted the law or misapplied a critical fact. These errors impact the case's final outcome, and can result in an unjust result for a litigant. It is important for a party to understand how appeals generally work in federal courts and in Virginia so that he can meaningfully discuss litigation strategy with his attorney in the event of an unfavorable legal outcome.

General Appellate Practice

Appeals at any level of the American judicial system are unique in how they operate when compared to the trial courts. While trial courts are most interested in resolving disputes between specific parties quickly through trials, appellate courts are more interested in assuring consistent application of the law, and determining new applications of the law for future litigants in similar positions as the appealing parties. Understanding this fundamental difference can affect a litigation strategy.

Nearly all appeals require the appealing party to provide the appellate court with two essential documents: (1) a record of the lower court's documents and transcripts to understand the complete context of what happened in a case (the "record"); and (2) the factual and legal arguments that form the basis of an appeal (the "brief"). For an issue to be preserved for appellate review, it is important that an attorney objects to an action that is about to be taken or is being taken by an opponent or the court. Without this objection or other means of notifying the court of a possible error, appellate courts tend not to fault the lower courts for errors that that they were unaware of when making decisions.

All appeals must be commenced by notifying parties that there will be an appeal by filing a "Notice of Appeal," which gives the other parties an opportunity to file their own Notices of Appeal if there are any of their own issues that they wish the appellate court to address.

Due to the voluminous documents required to provide the appellate court with a sufficient record of the lower court's proceedings, and the many hours that attorneys work preparing their briefs, appeals are often expensive. It is common for records to exceed thousands of pages, and need at least five copies of each set of papers. Although briefs are not as paper-intensive (typically should not exceed 30 pages), the work that goes into preparing them is very intensive as it requires attorneys to conduct hours of legal research and editing to present the arguments in the best light possible.

Federal Appellate Procedure

A party seeking to appeal a judgment or an order from a District Court to the Circuit Court of Appeals must file and serve a Notice of Appeal with the District Court within thirty days of entry of the judgment or order in civil cases, and within fourteen days of entry of the judgment or order in criminal cases. A party's failure to file a timely Notice of Appeal can result in a permanent waiver of an appeal regarding issues related to the judgment or order.

After an appellant (party appealing a decision) files the Notice of Appeal, the Circuit Court of Appeals will set a briefing schedule. In the Fourth Circuit Court of Appeals (the Court of Appeals that hears Virginia District Court cases), briefs typically must be filed within forty days of when the briefing schedule is filed. The "appendix" (the term used in appeals referring to abbreviated parts of the record that will be used) must be filed at the same time as the appellant's brief. At that point, the appellee (party opposing the appeal) typically has thirty days to serve a response-brief from the date that the appellee was served. Then the appellant can serve a reply-brief to respond to the appellee's response-brief fourteen days after being served with the response-brief.

If oral argument is requested, the Court of Appeals will set a date to hear the parties' arguments with a panel of three Circuit Court judges in attendance. Sometime afterward, the Court of Appeals will render its decision. If a party disagrees with the Court's decision, it can attempt to appeal to the Supreme Court of the United States, but the vast majority of appeals will not be considered.

Virginia Appellate Procedure

In Virginia state courts, a party seeking to appeal must file and serve a Notice of Appeal with the trial court within thirty days of entry of an appealable order or judgment regardless whether the case is a civil or criminal case.

Depending on the nature of the case or appeal, the appeal could be made from the Virginia General District Court to the Circuit Court (trial court of general jurisdiction); and from the Virginia Circuit Court to the Virginia Court of Appeals (mid-level appellate court) or the Supreme Court of Virginia (the last court for appeals).

Appeals from General District Court to Circuit Court are most often demands for and treated as new trials of the issues tried at the General District Court. In effect, they act as trial courts rather than "appellate" courts.

The Court of Appeals has jurisdiction to consider appeals "as of right," meaning that the Court will definitely hear and render a decision on cases concerning:

  • Circuit Court decisions that considered appeals from administrative agencies;
  • Workers' Compensation Commission decisions on workers' compensation claims;
  • Decisions concerning divorce decrees, affirmances or annulments of marriages, and spousal support decrees;
  • Child custody, child support decrees, adoptions, and decisions regarding juvenile and domestic relations issues that were resolved in the Circuit Court; and
  • Interlocutory Circuit Court orders (mid-case orders) which granted, dissolved, or denied injunctions.


The Court of Appeals can also hear appeals concerning convictions in Circuit Court for traffic offenses and crimes where the death penalty was not imposed, but those are "permissive appeals," meaning that the Court has the discretion whether to hear them or not. (Read below to generally understand the permissive petition to appeal process.)

The Supreme Court of Virginia has general appellate jurisdiction to hear all appeals, but most appeals are considered appeals by permission. This means that the Supreme Court (and Court of Appeals, if a criminal or traffic appeal) will first decide whether to even consider the appeal based upon a petition for appeal. After filing and serving the Notice of Appeal, the appellant must file and serve a petition for appeal with the complete case's record with the Supreme Court within three months of the entry of the lower court's judgment (when the case "ended" if there was no appeal). The petition will provide a statement of facts relevant to the appeal, and "assignments of error," which explains what the lower court did wrong that caused a substantial error in judgment. The appellee (opposing appellate party) will then file and serve a brief in opposition to the petition for appeal within twenty-one days of receipt of the petition for appeal. Once the appellant receives the appellee's opposition in brief, the appellant can either appear for oral argument to bolster her petition and refute her opponent's arguments, or file a reply-brief addressing her opponent's arguments, but then not be permitted oral argument. Oral arguments and the briefs are considered by "writ panels," which are panels of three current or retired judges (in the Court of Appeals, it is only one judge, but on rehearing it is three). If one judge believes that the petition has merit, the petition will be granted. If the petition is granted, it moves into the next stage of the appellate process. If the petition is denied, the appellant can seek a rehearing on the petition, but if that too is denied, then the case is over and the lower court's judgment remains in effect.

When a petition for appeal is granted, it begins a new, yet very familiar stage of litigation by requiring the appellant and the appellee to file and serve papers, which amplify the arguments made at the petition stage. The appellant must then file and serve a brief in support of the appeal, and an appendix (like in federal court) within forty days of when the petition was granted. The appellee must file and serve an opposing brief within twenty-five days of receipt of the appellant's brief. And, again, if the appellant chooses to do so, the appellant can file a short reply brief within fourteen days of receipt of the appellee's opposition brief.

Normally, oral argument will be scheduled, and each side will have fifteen minutes each to discuss the issues raised in the appeal with the justices of the Court. Sometime afterward, the Court will issue a decision either affirming the lower court's decision (ending the case), or reversing it, typically requiring a re-trial.

Contact us if you wish to discuss possible appeals in Virginia state or federal courts.