As the great and the good work on revising the rules for the expanded Court of Appeals of Virginia, I have a question: Should the Court of Appeals have binding assignments of error?
The current rules, of course, require assignments of error, and a key part of the revision project is minimizing any unnecessary changes.
But does it really make sense to require them going forward? Part 5A of the current rules devotes significant real estate to assignments of error, imposing some fairly technical requirements. Consider Rule 5A:12(c):
(1) Assignments of Error. Under a heading entitled “Assignments of Error,” the petition must list, clearly and concisely and without extraneous argument, the specific errors in the rulings below — or the issue(s) on which the tribunal or court appealed from failed to rule — upon which the party intends to rely. An exact reference to the page(s) of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken must be included with each assignment of error but is not part of the assignment of error. If the error relates to failure of the tribunal or court below to rule on any issue, error must be assigned to such failure to rule, providing an exact reference to the page(s) of the record where the issue was preserved in the tribunal below, and specifying the opportunity that was provided to the tribunal or court to rule on the issue(s).
(i) Effect of Failure to Assign Error. Only assignments of error assigned in the petition for appeal will be noticed by this Court. If the petition for appeal does not contain assignments of error, the petition will be dismissed.
(ii) Insufficient Assignments of Error. An assignment of error which does not address the findings, rulings, or failures to rule on issues in the trial court or other tribunal from which an appeal is taken, or which merely states that the judgment or award is contrary to the law and the evidence, is not sufficient. If the assignments of error are insufficient, the petition for appeal will be dismissed.
(iii) Effect of Failure to Use Separate Heading or Include Preservation Reference. If the petition for appeal contains assignments of error, but the assignments of error are not set forth under a separate heading as provided in subparagraph (c)(1) of this Rule, a rule to show cause will issue pursuant to Rule 5A:1A. If there is a deficiency in the reference to the page(s) of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken — including, with respect to error assigned to failure of such tribunal to rule on an issue, an exact reference to the page(s) of the record where the issue was preserved in such tribunal, specifying the opportunity that was provided to the tribunal to rule on the issue(s) — a rule to show cause will issue pursuant to Rule 5A:1A.
What words spring to mind after reading that? Dense? Daunting? Trap for the unwary?*
By contrast, the Federal Rules of Appellate Procedure just ask for “a statement of the issues presented for review.” Fed. R. App. P. 28(a)(5). Short and sweet. Yet the Federal courts still manage to run a functioning appellate system.
In fairness, it might make sense to require assignments of error in requests for discretionary review, because litigants will be asking the Court to review a specific question. But the expanded Court of Appeals will grant litigants an appeal of right. So that justification won’t work.
Historically, SCOVA has explained the need for assignments of error by pointing to a need to identify appeal points, limit extraneous discussion, and allow the appellee to respond:
The purpose of assignments of error is to point out the errors with reasonable certainty in order to direct this court and opposing counsel to the points on which appellant intends to ask a reversal of the judgment, and to limit discussion to these points. Without such assignments, appellee would be unable to prepare an effective brief in opposition to the granting of an appeal, to determine the material portions of the record to designate for printing, to assure himself of the correctness of the record while it is in the clerk’s office, or to file, in civil cases, assignments of cross-error.
These justifications don’t work in the context of the expanded CAV. To begin with, a statement of the issues will identify points of contention as effectively as an assignment of error, without the baroque procedural requirements. Appeals to the CAV will be appeals of right, not petitions for discretionary review, so absolute precision in framing questions presented is less important than it is before SCOVA.
As for the appellees, it’s not at all obvious that without assignments of error, the appellee would be unable to respond. The appellant gets 12,300 words for his opening brief. That, more than his assignment of error, will tell the appellee what the appeal is about and allow her to respond. And if the appellant can’t get his point across in 12,300 words, then it doesn’t really matter what assignments of error he asserts. He is going to lose.
The point about knowing what to designate for the appendix makes sense, until you remember that in a world with electronic filing you don’t need an appendix in the first place. We’ll maybe do a separate post on this.
Even less compelling is the claim that an appellee cannot “assure himself of the correctness of the record” without assignments of error. That’s nonsense: Either the record is accurate, or it is not. The answer cannot possibly depend on the appellant’s arguments.
Finally, we get to the argument that without assignments of error, the appellee wouldn’t know if she needs to assign cross-error. This is just hopelessly circular. Neither the appellant nor the appellee should be limited to binding assignments of error. You can’t bootstrap a justification for binding assignments of error by reference to to an equally arbitrary requirement for assignments of cross-error.
*In fairness, Rule 5A:12 governs petitions for appeal. But the proposed revisions plug these requirements into 5A:20, which governs opening briefs in appeals of right.