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[Posted December 1, 2006] This week sees the institution of no fewer than three new rules of court. Two of those, amendments to the Federal Rules of Appellate Procedure, had been announced some time ago, and take effect today. The other is a wholesale revision of Virginia’s rules for pro hac vice admissions.
Today marks the institution of modifications to
two federal rules
relating to appellate courts. The more widely discussed is the change to FRAP 32.1, to create some semblance of uniformity among the circuits as they govern the citation of unpublished opinions. That rules states that the circuits may not "prohibit or restrict the citation of" unpublished opinions issued after January 1, 2007. This will drag some circuits, kicking and screaming, into a new era of more liberal citation rules.
I have previously posted a
summary
of the rules related to citation of unpublished opinions in the three appellate courts that sit in Virginia. There, I noted that the Fourth strongly disfavors such citations, but has permitted them under certain circumstances. The new provision applies not only in the Fourth Circuit, but in district courts within the Fourth, so trial practitioners should become familiar with both the federal rule and its local-rule counterpart.
One other observation: The Fourth adopts a new local rule that goes along with the FRAP amendment, but the court retains control over one key element, and you can reliably anticipate that it will exercise that control. The court has the right to decide for itself how much weight to assign to unpublished opinions. My best guess is that, accordingly, this rule change will wreak an almost imperceptible change on the way the Fourth conducts its affairs; appellate practitioners should not hurry out to find a host of new unpublished opinions to cite, on the assumption that today’s dawn heralds a sea change in Richmond.
The second FRAP change will not have much of an immediate impact, but when it finally does kick in in full force, it will dramatically change at least one aspect of federal appellate practice. That change is to authorize the circuits to adopt procedures for electronic filing of briefs and other papers in appeals.
If you’re a Luddite, and your VCR (still got one of those?) flashes "12:00" all day, don’t panic, yet. As noted above, the rule merely authorizes the circuits to adopt procedures for e-filing; it does not mandate such changes, and you do not need to start cramming on how to do so right now. The Fourth is still in the process of implementing and debugging its CM/ECF system (that’s Case Management/Electronic Case Filing, for the Luddite crowd), and probably won’t have that finished until some time in the spring of 2007; actual e-filing probably won’t even be authorized, much less mandated, for several months after that.
But in a year or so from now, the time for such expertise will draw nigh, and appellate attorneys who prefer not to dabble in the cyber-world will have no choice. Actually, there probably will be a choice for them; they will almost certainly be able to comply with the rules by using a reliable appellate consulting or brief printing company.
E-filing has been a part of state court appellate practice for almost two years now; both the Supreme Court and the Court of Appeals of Virginia have required that all rehearing petitions filed after January 1, 2005 be filed as a PDF attachment to an e-mail. I don’t know whether the Fourth’s procedure will be identical to that, but for what it’s worth, I have found e-filing to be easy and hassle-free. That won’t stop me from continuing to use a good consultant, but as I have expressed before, if you own stock in such a company, you might want to start gathering the villagers with pitchforks and torches; a development like this cannot be good news for these companies.
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The Supreme Court of Virginia wholly rewrites Rule 1A:4, effective February 1, 2007, in an order issued on Tuesday, November 28. The rule appears to address the circumstance in which out-of-state attorneys come into Virginia on a regular, but ostensibly pro hac vice, basis to argue cases here. There is apparently a concern in some quarters of the commonwealth that such attorneys are essentially engaging in the regular practice of law here.
The new rule greatly expands the processes required for pro hac vice admission, and creates a significant layer of bureaucracy that will (not so subtly) dissuade such a practice once the rule takes effect. The existing rule requires little more than a formal request of the trial court, accompanied by a pleasant smile. But starting in February, foreign attorneys must file a verified application, including his or her disciplinary status in all jurisdictions of regular bar admission, and pay a $250 per case fee. The application must be filed along with a motion signed by a Virginia attorney, and include "a proposed order granting or denying the motion" for the judge’s consideration. (I have been idly wondering why the Virginia lawyer would tender a draft order denying the motion, but the new rule doesn’t discuss that.) PHV appearances are limited to 12 per year; if the attorney tries to exceed that, the trial court is required to deny the request.
My take on this is as follows: I can certainly understand the concern that might arise if a given foreign lawyer routinely appears here, taking cases that would otherwise go to Virginia lawyers. My trial level practice has been almost exclusively in the Tidewater area, and I haven’t seen a significant number of such cases, but it might very well be a problem elsewhere. Nevertheless, I perceive some drawbacks to the new rule, starting with the size of the aforementioned bureaucracy. The complexity of this process might very well be designed to dissuade foreign attorneys from using the PHV procedures; as well, local clerks of court might view the whole thing as an unfunded mandate whereby they have to undertake a lot of effort in recordkeeping and administration, but they get no part of the $250 fee.
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As readers of this site know, the Supreme Court created, as a pilot program for calendar 2005, a requirement that all petitions for rehearing in the two state appellate courts be filed electronically, as PDF documents. The rule changes had a sunset provision, by which they were due to expire on December 31.
The court is apparently quite satisfied with the program, and has extended it indefinitely; the Rules of Court now contain permanent requirements for electronic filing of rehearing petitions. You can see the new rules here. Note that the only pleadings to which these rules will apply are rehearing petitions. You still need to file, for example, a petition for appeal in hard copy. There are exemptions from the requirement for prisoners proceeding pro se, and for those obtaining leave of court to file paper versions of their petitions. Presumably, a motion based on the fact that a given lawyer is a neo-Luddite may succeed, but probably not for much longer; the court expects today's practitioners to keep up with technological changes.
It is entirely foreseeable to me that, in the near future, this program will be expanded to permit, or even require, electronic filing of all documents -- petitions, briefs, motions, everything -- that get submitted to the court. Some courts, including at least two federal courts in the Commonwealth of which I am aware, already provide for electronic filings of documents. You have been warned.
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The Supreme Court has announced changes to three rules affecting the Court of Appeals of Virginia. The text of the changes, which will take effect in August, may be viewed here.
More significantly, the entire "rule book" for the CAV is being considered for revision. That court has suggested wholesale changes to Part Five A, and has transmitted a report to the Supreme Court for its consideration. (The Supreme Court has the authority and the responsibility to make rules for the Court of Appeals.) When those proposed amendments become available, I will post them here.
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The Supreme Court of Virginia has amended the rules relating to petitions for rehearings in that court and in the Court of Appeals, effective January 1, 2005. The effect of this rule change is to require that all such petitions be filed electronically. The changes have a sunset provision that terminates them on December 31, 2005, unless they are sooner extended. The court will in all probability evaluate the efficiency of these filings over the course of the year, conceivably with an eye toward extending the e-filing requirement to other (or perhaps all) documents filed with the court.
The rule changes affect only a small percentage of the courts' caseload in this pilot program. The Supreme Court acted on just 383 petitions for rehearing in 2003, the last year for which full statistics are available. (The Court of Appeals does not publish statistics on the number of rehearing petitions it receives.) This contrasts with the roughly 3,000 matters filed with the Supreme Court Clerk annually. In the longer term, though, this rule change, if it portends the advent of a truly paperless filing system, would dramatically alter the way in which appeals are handled. It would also be very bad economic news for the printing companies upon which many appellate lawyers have come to rely for filings. Several courts, including at least one U.S. Court of Appeals (http://www.cobar.org/Docs/genorder102004.pdf) have already adopted voluntary or mandatory e-filing requirements, either as an adjunct to or a substitute for paper filings.
The Supreme Court of Virginia has amended the Rules of Court to add a new provision relating to the award of attorney's fees at the appellate level. The change, effective April 1, 2005, applies in any case in which attorney's fees are awarded in the trial court pursuant to contract, statute, or other applicable law. If an appellant thereafter petitions for and fails to obtain a writ, the appellee may then (within 30 days of the date of the denial of the petition for appeal or for rehearing) apply to the trial court for an award of appellate attorney's fees. The court's directive, specifying that the trial court makes the award, is consistent with the procedure first established by the U.S. Supreme Court in Perkins v. Standard Oil, 399 U.S. 222, 90 S.Ct. 1989 (1970), and followed consistently in the U.S. Courts of Appeals in a wide variety of cases ever since. The trial court's order is final, and can itself be appealed, whether appellate fees are awarded or not. The text of the rule changes may be found at the following site: http://www.courts.state.va.us/scv/amendments/122204_1_1a_5_20.pdf
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