I Won My Jury Trial, But My Case Has Been Appealed! Now What?

By: Malcolm P. McConnell, III

In Virginia, virtually any judgment from a jury trial can be appealed to our Supreme Court. But the Supreme Court does not agree to hear every case that is appealed. So, if your personal injury verdict and judgment are appealed, what can you expect?

The purpose of most appeals is to persuade the Supreme Court of Virginia that the trial court did something wrong – i.e., made a decision before, during or after the trial which was legally incorrect and that the wrong decision resulted in the wrong outcome of the case. The person complaining of the mistake asks the Supreme Court to reverse that incorrect decision. Sometimes that reversal may mean the end of a case, or it may mean that the case goes back down to the trial court so that things can be done “correctly.”

Under Virginia law, an appeal begins with filing of a Notice of Appeal. The Notice of Appeal is simply a statement that the party intends to appeal the decision and states whether transcripts of the trial and other proceedings have been ordered and/or filed with the trial court. The Notice of Appeal must be filed within thirty (30) days of the Final Order, ending the case in the trial court.

After the Notice of Appeal, the next step in pursuing an appeal is the filing of the Petition for Appeal. However, whereas the Notice of Appeal is filed in the trial court, the Petition for Appeal is filed directly in the Supreme Court. The content and format of the Petition for Appeal are governed by the Rules of the Supreme Court, but the purpose of the Petition is to set forth the reasons why the Supreme Court of Virginia should grant the appeal. The Petition will contain the relevant facts from the trial below, the relevant decisions of the trial court, and an argument of why the trial court’s decision was wrong and why it made a difference. The Petition will likely refer to pleadings filed in the trial court, transcripts of trial and/or other proceedings, and to past decisions by the Supreme Court of Virginia which set forth what the proper decision should have been. The Petition for Appeal must be filed within three months following the Final Order in the case.

Within twenty one (21) days after the Petition is filed, the opposing side must file a Brief in Opposition to the Petition for Appeal. The Brief in Opposition is like the Petition for Appeal – but in “reverse.” The Brief in Opposition will set forth an argument why the decision complained of was the correct decision. It may also explain why, even if the decision was incorrect, it made no difference and was, therefore, “harmless error.”

After the Brief in Opposition is filed, the Petitioner has a choice. He can either file a Reply Brief, responding to the points raised in the Brief in Opposition, or they can opt to appear before a three judge panel to make oral argument why the appeal should be granted. Most Petitioners choose the oral argument, but if the Reply Brief is chosen, it must be filed within seven days after the Brief in Opposition is filed. If the oral argument is chosen, the Supreme Court will schedule it for a week which the Court sets aside to hear arguments on Petitions. Because the oral argument is a substitute for a Reply Brief, the party opposing the appeal is not permitted to argue.

After the briefs are filed and the oral argument , if any, is heard, the Court announces whether it will hear the appeal. Obviously, the answer is either “yes” or “no.” If the answer is “no,” the case is over – probably. The Petitioner can file a Petition for Rehearing to ask the Court to reconsider denying the appeal, but such Petitions are not often filed and rarely granted. The Petition must be filed within fourteen (14) days of the Order denying the appeal. If the Court denies the Petition for Rehearing, the case is truly over. If the Court grants the Petition for Rehearing, then the parties are in the same position as if the appeal had been granted on the original Petition for Appeal. If the Court grants the appeal, the case is not over. The Petitioner has not won the case, though. The Supreme Court has not decided to reverse the decision complained of – the Court has said only that it will consider the question.

Once the appeal is granted, the parties must create what is called the Appendix: a bound collection of the most pertinent parts of the record from the trial court. The Appendix may be one volume or several, and usually consists of pleadings and transcripts from the trial court. Often the Appendix comprises the materials which were cited by the parties in the Petition for Appeal and the Brief in Opposition.

The granting of the appeal also triggers a new briefing schedule. The Petitioner is now the Appellant and must file the Brief of Appellant within forty (40) days of the granting of the appeal. The format, purpose and content of the opening brief is virtually identical to the Petition for Appeal as it presents the argument for reversing the alleged mistake(s) of the trial court. The party opposing the appeal is now the Appellee, and the Brief of Appellee – substantially similar to the Brief in Opposition filed at the petition stage – must be filed within twenty five (25) days after the filing of the Brief of Appellant. The Appellant then has fourteen (14) days to file the Reply Brief of Appellant. This concludes the briefing stage of the appeal.

One week out of every session of the Supreme Court is devoted to hearing arguments on appeals that have been granted and had their briefs filed. Usually the arguments are within two months of the conclusion of the briefing. The full court hears oral argument and both parties to the appeal participate in the argument. Each side is given 15 minutes to address the Court. The Appellant goes first and may reserve any portion of his 15 minutes for rebuttal, following the Appellees’ argument. When the Appellant concludes his argument, the Appellee argues, followed by rebuttal from the Appellant, if rebuttal time has been reserved. Argument usually consists of prepared remarks by the parties, but also questioning from the members of the Court and at times can be quite vigorous and lively.

Once argument has concluded, the parties wait for the Court’s decision. Typically, the Court announces its decisions on the Friday of the next session, which may be more than two months later. The Court usually issues a written opinion, explaining its decision. Decisions are not always unanimous and sometimes there is an opinion disagreeing with the majority opinion. (Such disagreeing opinions are called dissents.) The decision of the Court is subject to a Petition for Rehearing, just as a decision denying an appeal at the Petition stage is, but Petitions for Rehearing after a published opinion are extraordinarily rare.

If the Court decides the trial court acted properly or that the trial court’s decision, even if incorrect, was harmless, then the Court affirms the judgment from the trial court and the case is ended. If the Court decides the trial court made a mistake and that the mistake was not harmless, then the case may be ended, with a new result, or the case may have to be sent back to the trial court for new proceedings, as directed by the Supreme Court.

Thus, even after a trial, a case may not end for a very long time. If an appeal is denied, the petition stage will still take several months. If an appeal is granted, then the decision of the Supreme Court will likely not be rendered for at least a year after the trial court entered its “final” judgment.

About the Author: Mic McConnell is a Richmond medical malpractice attorney. With over 20 years of experience, Mic has handled challenging cases in almost every medical specialty for over twenty years. Mic was recently named Best Lawyers' 2013 Richmond Medical Malpractice Law - Plaintiffs "Lawyer of the Year." He has earned the highest rating awarded ("AV") by Martindale-Hubbel Lawyer Listing Service. He is included in The Best Lawyers in America and has repeatedly been voted by Virginia lawyers as a being among "Virginia's Super Lawyers."

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