Every appellate CLE stresses the importance of reviewing the record as soon as possible, particularly if you are the appellant. This is especially important in state court because (1) you run up against deadlines quickly once the record lands in CAV, and (2) PACER works, but OCRA . . . kinda works sometimes?

And at every appellate CLE, this leads to the question: What do I do if a document is missing from the record?

Real life answer: Call the CAV clerk’s office, explain the situation, and stand back. CAV will call the trial court clerk’s office. The lower court clerk will submit an amended record, which the parties and CAV will use, and life will be good. See Va. Sup. Ct. R. 5:15(a).

Formal legal answer: File a petition for a writ of certiorari under Code Section 8.01-673.

This explanation typically leads to confused looks and deep questions about why big-boy SCOTUS uses cert petitions to exercise discretionary review of intermediate appellate court errors, while SCOVA uses cert petitions to plug holes in the record.

SCOVA’s recent opinion in Eckard v. Commonwealth sheds some light on these imponderables. Eckard is basically a juror misconduct case with documents missing from the record that went up to CAV–namely, a written proffer and the Commonwealth’s objection. Eckard discussed the proffer in his principal brief in CAV, even supplying a record cite (R. 294, in case you were wondering). Because this is a missing-documents case, of course, there was no proffer at R. 294. The Commonwealth politely–ever so politely–pointed this out. Eckard declined to file a reply brief. The panel asked about the whole kerfuffle at oral argument, but Eckard didn’t have great answers. CAV predictably affirmed the trial court in an unpublished order, refusing to consider the missing proffer.

Eckard then petitioned for appeal to SCOVA. Again, he referenced the written proffer, again citing R. 294. SCOVA granted the petition, and Eckard filed a petition for writ of certiorari to add the written proffer and the Commonwealth’s objections to the record.* The Commonwealth objected under Rule 5:15(a), which says that the record on appeal from CAV “consists of the record as filed in the office of the clerk of” CAV, along with all other documents filed with the clerk.

SCOVA decided that it could not consider the proffer and the Commonwealth’s objections to it. Rule 5:15(a) explains that the record on appeal to SCOVA is the record from CAV, which did not include these documents. The court stressed Eckard’s “exclusive duty” to make sure that the record was sufficient to review any alleged error.

The court was not inclined to enlarge the record by granting Eckard’s cert petition. It explained that “Code § 8.01-673(A) codifies an ancient writ issued by common-law courts.” (Why yes, Justice Kelsey did write this opinion, why do you ask?) Certiorari is an “extraordinary remedy” that historically applied to all manner of defects in lower court cases where the procedure did not accord with common law. “At common law when not ancillary to other process, certiorari is in the nature of a writ of error. It has the same functions to inferior tribunals whose proceedings are not according to the course of common law as the writ of error has to common-law courts.” That said, modern Virginia practice  uses the writ only to secure a complete record.

The court characterized Rule 5:15’s statement about the record as “descriptive,” explaining that if it “has any prescriptive effect, it governs only the litigants and by implication forbids them from unilaterally adding anything to the appellate record so defined.” It does not limit an appellate court’s common-law power to issue a writ of certiorari. That said, nothing in the common law or the statute requires the appellant to issue the writ. SCOVA thus declined to do so, explaining that there was “no defect in the justice administered” by CAV: “The judges of that court cannot be faulted for not considering documents never presented to them.” if there was any error in the CAV proceeding, SCOVA concluded, it was Eckard’s.

*These documents were part of an amended trial court record that was transmitted to SCOVA the day before Eckard filed his cert petition. This suggests that Eckard called at least one of the clerk’s offices (SCOVA or trial court), and got them to “fix” the problem. The trouble is that the fix came too late, because the document wasn’t part of the CAV record–either formally, under Rule 5:15, or in real life. So he couldn’t fault the CAV panel for not reviewing it. The short cut of calling the clerk’s office works only if you do it immediately in the Court of Appeals.