Text of Rules of the Supreme Court
Rule 1:1 RULES OF SUPREME COURT OF VIRGINIA
Parts One, One A, Two, Three, Four and Five of these Rules were adopted November 22, 1971, and generally made effective March 1, 1972. They constituted a revision of, and replaced all prior Rules, except for the Rules of Criminal Practice and Procedure (Part Three A) and the Rules for the Integration of the Virginia State Bar (Part Six). Part Three A was adopted June 15, 1971, and made effective January 1, 1972. Part Two A was adopted May 19, 1977, effective July 1, 1977. Part Three B was adopted June 22, 1977, effective July 1, 1977. Part Three C was promulgated effective August 28, 1978. Part Three D was adopted February 17, 1982, effective July 1, 1982. Part Five A was adopted May 1, 1984, effective October 1, 1984, except for Rule 5A:11, which became effective November 1, 1984. The Medical Malpractice Rules of Practice were promulgated by the Chief Justice on November 1, 1976, and became immediately effective. Part Four was revised by amendment adopted July 22, 1977, effective October 1, 1977. Part Three A was revised by amendment adopted May 1, 1984, effective July 1, 1984. Part Five was revised by amendment adopted May 16, 1985, effective August 1, 1985. Parts Three B and Three C were revised by amendment adopted December 21, 1987, effective July 1, 1988. Part Three D is repealed effective July 1, 1989. Parts Seven A, Seven B and Seven C were adopted effective July 1, 1989. Part 8 was adopted effective July 1, 1992.
The statements of source and the comments that appear after some of the Rules were prepared by the subcommittee that presented the Rules to the Judicial Council. They are not part of the Rules as adopted by the Supreme Court, but are included for the useful information that they give the practitioner. The Rules referred to in the statements of source, and the "present" or "existing" Rules referred to in the comments, are the former Rules of the Supreme Court of Appeals, as amended.
Many of the cases cited in the annotations under the various Rules were decided under similar earlier Rules.
GENERAL RULES APPLICABLE TO ALL PROCEEDINGS
Rule 1:1.2 Finality of Judgments, Orders and Decrees.
All final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer. But notwithstanding the finality of the judgment, in a criminal case the trial court may postpone execution of the sentence in order to give the accused an opportunity to apply for a writ of error and supersedeas; such postponement, however, shall not extend the time limits hereinafter prescribed for applying for a writ of error. The date of entry of any final judgment, order, or decree shall be the date the judgment, order, or decree is signed by the judge.
Rule 1:2 Venue in Criminal Cases.
In criminal cases, questions of venue must be raised in the trial court and before the verdict in cases tried by a jury and before the finding of guilty in cases tried by a court.
Rule 1:3 Reporters and Transcripts of Proceedings in Courts.
Reporters shall be first duly sworn to take down and transcribe the proceedings faithfully and accurately to the best of their ability, and shall be subject to the control and discipline of the judge.
When a reporter takes down any proceeding in a court, any person interested shall be entitled to obtain a transcript of the proceedings or any part thereof upon terms and conditions to be fixed in each case by the judge.
The proceedings may be taken down by means of any recording device approved by the judge.
Rule 1:4 General Provisions as to Pleadings.
(a) Counsel tendering a pleading gives his assurance as an officer of the court that it is filed in good faith and not for delay.
(b) A pleading that is sworn to is an affidavit for all purposes for which an affidavit is required or permitted.
(c) Counsel or an unrepresented party who files a pleading shall sign it and state his address.
(d) Every pleading shall state the facts on which the party relies in numbered paragraphs, and it shall be sufficient if it clearly informs the opposite party of the true nature of the claim or defense.
(e) An allegation of fact in a pleading that is not denied by the adverse party's pleading, when the adverse party is required by these Rules to file such pleading, is deemed to be admitted. An allegation in a pleading that the party does not know whether a fact exists shall be treated as a denial that the fact exists.
(f) Requirements of pleadings applicable to instruments not under seal shall apply to instruments under seal.
(g) Requirements of pleadings applicable to legal defenses shall apply to equitable defenses.
(h) The clerk shall note and attest the filing date on every pleading.
(i) The mention in a pleading of an accompanying exhibit shall, of itself and without more, make such exhibit a part of the pleading.
(j) Brevity is enjoined as the outstanding characteristic of good pleading. In any pleading a simple statement, in numbered paragraphs, of the essential facts is sufficient.
(k) A party asserting either a claim, counterclaim, cross-claim, or third-party claim or a defense may plead alternative facts and theories of recovery against alternative parties, provided that such claims, defenses, or demands for relief so joined arise out of the same transaction or occurrence. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or equitable grounds.
( l ) Every pleading, motion or other paper served or filed shall contain at the foot the office address and telephone number of the counsel of record submitting it, along with any facsimile number regularly used for business purposes by such counsel of record.
Rule 1:4A Special Rule for Pleadings in General District Courts. (Repealed.)
Rule 1:5 Counsel.
When used in these Rules, the word "counsel" includes a partnership, a professional corporation or an association of members of the Virginia State Bar practicing under a firm name.
When such firm name is signed to a pleading, notice or brief, the name of at least one individual member or associate of such firm must be signed to it. Signatures to briefs and petitions for rehearing may be printed or typed and need not be in handwriting.
Service on one member or associate of such firm shall constitute service on the firm. Service is not required to be made on foreign attorneys.
"Counsel of record" includes a counsel or party who has signed a pleading in the case or who has notified the other parties and the clerk in writing that he appears in the case. Counsel of record shall not withdraw from a case except by leave of court after notice to the client of the time and place of a motion for leave to withdraw.
Rule 1:6 Service of Notice to Take Depositions. (Rescinded, Reserved for Future Use.)
Rule 1:7 Computation of Time.
Whenever a party is required or permitted under these Rules to do an act within a prescribed time after service of a paper upon counsel of record, three (3) days shall be added to the prescribed time when the paper is served by mail, or one (1) day shall be added to the prescribed time when the paper is served by facsimile or commercial delivery service. With respect to Parts Five and Five A of the Rules, this Rule applies only to the time for filing a brief in opposition.
Rule 1:8 Amendments.
No amendments shall be made to any pleading after it is filed save by leave of court. Leave to amend shall be liberally granted in furtherance of the ends of justice.
In granting leave to amend the court may make such provision for notice thereof and opportunity to make response as the court may deem reasonable and proper.
Rule 1:9 Discretion of Court.
All steps and procedures in the clerk's office touching the filing of pleadings and the maturing of suits or actions may be reviewed and corrected by the court.
The time allowed for filing pleadings may be extended by the court in its discretion and such extension may be granted although the time fixed already has expired; but the time fixed for the filing of a motion challenging the venue shall in no case be extended except to the extent permitted by §8.01-264.
Rule 1:10 Verification.
If a statute requires a pleading to be sworn to, and it is not, or requires a pleading to be accompanied by an affidavit, and it is not, but contains all the allegations required, objection on either ground must be made within seven days after the pleading is filed by a motion to strike; otherwise the objection is waived. At any time before the court passes on the motion or within such time thereafter as the court may prescribe, the pleading may be sworn to or the affidavit filed.
Rule 1:11 Striking the Evidence.
If the court sustains a motion to strike the evidence of either party in a civil case being tried before a jury, or the evidence of the Commonwealth in a criminal case being so tried, then the court shall enter summary judgment or partial summary judgment in conformity with its ruling on the motion to strike.
If the court overrules a motion to strike the evidence and there is a hung jury, the moving party may renew the motion immediately after the discharge of the jury, and, if the court is of opinion that it erred in denying the motion, it shall enter summary judgment or partial summary judgment in conformity with its ruling on the motion to strike.
Rule 1:12 Service of Papers after the Initial Process.
All pleadings, motions and other papers not otherwise required to be served and requests for subpoenas duces tecum shall be served by delivering, dispatching by commercial delivery service, transmitting by facsimile or mailing a copy to each counsel of record on or before the day of filing.
Service pursuant to this rulehall be effective upon such delivery, dispatch, transmission or mailing, except that papers served by facsimile transmission completed after 5:00 p.m. shall be deemed served on the next day that is not a Saturday, Sunday, or legal holiday.
At the foot of such pleadings and requests shall be appended either acceptance of service or a certificate of counsel that copies were served as this Rule requires, showing the date of delivery, dispatching, transmitting or mailing.
Rule 1:13 Endorsements.
Drafts of orders and decrees shall be endorsed by counsel of record, or reasonable notice of the time and place of presenting such drafts together with copies thereof shall be served by delivering, dispatching by commercial delivery service, transmitting by facsimile or mailing to all counsel of record who have not endorsed them. Compliance with this Rule and with Rule 1:12 may be modified or dispensed with by the court in its discretion.
Rule 1:14 Preservation of the Record.
A court may authorize the use of electronic or photographic means for the preservation of the record or parts thereof.
Rule 1:15 Local Rules of Court.
(a) Whenever a local Rule is prescribed by a circuit court it shall be spread upon the order book and a copy with the date of entry shall be forthwith posted in the clerk's office, filed with the executive secretary of the Supreme Court, and furnished to attorneys regularly practicing before that circuit court; and whenever an attorney becomes counsel of record in any proceedings in a circuit court in which he does not regularly practice, it shall be his responsibility to ascertain the Rules of that court and abide thereby. The clerk shall, upon request, promptly furnish a copy of all Rules then in force and effect.
(b) Whenever a local Rule is prescribed by a circuit court providing for the orderly management of the civil docket by use of the praecipe system, the praecipe shall be substantially in the form appearing in the appendix of forms at the end of this Part One.
(c) Whenever a local Rule is prescribed by a circuit court providing for the submission of instructions prior to trial, such local rulehall be substantially in the form appearing in the appendix of forms at the end of this Part One.
(d) The chief judges of the circuit and juvenile and domestic relations district courts shall on or before December 31 of each year furnish the executive secretary of the Supreme Court, on forms provided by him, current general information relating to the management of the courts within each circuit and district. This information shall be assembled and published on or before July 1 of each year as an appendix to the Rules of the Supreme Court.
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First Chesapeake Criminal terms: First Tuesday in each month,
2:00 p.m. Civil terms: First Tuesday in each
month, 10:00 a.m.
Second Virginia Beach First Monday in each month unless holiday,
then following day.
Accomack First Monday in February, April, June,
August, October and December.
Northampton Second Monday in January, March, May, July,
September and November.
Third Portsmouth First Thursday in each month.
Fourth Norfolk First Wednesday in each month.
Fifth Isle of Wight Second Monday in January, March, May, July,
September and November.
Southampton Third Monday in January, March, May, July,
September and November.
Suffolk Fourth Monday in January, March, May, July,
September and November.
Sixth Hopewell Second Tuesday in February, April, June,
August, October and December.
Prince George Third Tuesday in January, March, May, July,
September and November.
Surry Fourth Tuesday in January, March, May, July,
September and November.
Sussex Second Tuesday in January, March, May, July,
September and November.
Greensville First Tuesday in February, April, June,
August, October and December.
Brunswick Fourth Tuesday in February, April, June,
August, October and December.
Seventh Newport News Criminal terms: Second Monday in each month.
Civil terms: Second Monday in January,
March, May, July, September and November.
Eighth Hampton First Monday in February, April, June,
August, October and December.
Ninth Williamsburg/ Third Wednesday in January, March, May,
James City July, September and November.
County
York Third Tuesday in January, March, May, July,
September and November.
Charles City First Tuesday in January, March, May, July,
and September, the first Wednesday in
November.
New Kent Second Monday in January, third Monday in
March, May, July, September and November.
Gloucester First Monday in January, March, May, July,
September and November.
Mathews Third Monday in January, March, May, July,
September and November.
Middlesex Fourth Monday in January, March, May, July,
September and November.
King William First Monday in February, April, June,
August, October and December.
King and Queen Second Monday in February, April, June,
August, October and December.
Tenth Halifax Second Monday in January, March, May, July,
September and November.
Mecklenburg Third Monday in February, April, June,
August and October and the second Monday in
December.
Lunenburg First Monday in February, April, June,
August, October and December.
Charlotte Tuesday after the first Monday in January,
March, May, July, September and November.
Prince Edward Tuesday after the third Monday in January,
April, June, September and November.
Buckingham Tuesday after the second Monday in January,
April, June, September and November.
Cumberland Tuesday following the fourth Monday in
January, April, June and September.
Appomattox Tuesday after the first Monday in April,
June, October and December.
Eleventh Powhatan Second Tuesday in February, April, June,
October and December.
Dinwiddie Third Tuesday in January, March, May, July,
September and November.
Nottoway First Tuesday in January, March, May, July,
September and November.
Amelia First Tuesday in February, April, June,
October and December.
Petersburg Criminal terms: Third Thursday in each month
except August. Civil terms: Third Wednesday
in each month except August.
Twelfth Chesterfield Criminal and Civil terms: Tuesday following
third Monday in January, and third Monday in
March, May, July, September and November.
Colonial Heights Second Monday in January, April and July and
Tuesday following the second Monday in
October.
Thirteenth Richmond City John Marshall Courts Building: terms: First
Monday in each month. Civil term days: First
Monday in March, June and December and third
Monday in September.
Manchester Courthouse: First Monday in each
month.
Fourteenth Henrico Criminal terms: Second Monday in January,
March, May, July, September and November.
Civil cases set second Monday, July,
October, January, April (2:00 p.m.) or may
be set by telephone.
Fifteenth Caroline First Wednesday in January, April, July and
October.
Essex Fourth Wednesday in January, April, July and
October.
Fredericksburg Fourth Monday in January, April, July and
October.
Hanover Third Tuesday in January, March, May, July,
September and November, Criminal - 9:00
a.m.; Civil - 2:00 p.m.
King George Second Thursday in January, April, July and
October.
Lancaster Fourth Friday in January, April, July and
October.
Northumberland Fourth Tuesday in January, April, July and
October.
Richmond Fourth Monday in January, April, July and
October.
Spotsylvania Third Monday in January, April, July and
October.
Stafford Criminal terms: First Monday of every month.
Civil terms: First Monday in January, April,
July and October.
Westmoreland Fourth Thursday in January, April, July and
October.
Sixteenth Charlottesville Third Monday in February, April, June,
August, October and December.
Madison First Monday in January, March, May, July,
September and November.
Louisa Second Monday in January, March, May, July,
September and November.
Greene Second Monday in February, April, June,
August, October and December.
Orange Fourth Monday in January, March, May, July,
September and November.
Albemarle First Monday in February, April, June,
August, October and December.
Goochland Second Tuesday in February, April, June,
August, October and December.
Culpeper Third Monday in February, April, June,
August, October and December.
Fluvanna Fourth Monday in February, April, June,
August and October and third Tuesday in
December.
Seventeenth Arlington Third Monday (or Tuesday, if holiday falls
on Monday) in February, April, June, August,
October and December.
Eighteenth Alexandria Second Monday in January, March, May, July,
September and November; at 9:00 a.m.; cases
may also be set for trial by telephone
(703-838-4123).
Nineteenth Fairfax Criminal terms: Tuesday following third
Monday in January, March, May, July,
September and November. Civil terms: Fourth
Monday in January, March, May, July,
September and November.
Twentieth Fauquier Misdemeanor Appeal Days: First Tuesday of
each month.
Loudoun Terms: Fourth Monday in January, March, May,
July, September and November.
Rappahannock Second Monday in February, April, June,
August and December and second Tuesday in
October.
Second Monday in January, March, May, July,
September and November.
Twenty-First Henry Third Tuesday in January, third Monday in
July, and the first Monday in April and
October.
Martinsville Criminal terms: Second Monday in February,
the first Monday in May, the fourth Monday
in July and the first Monday in November.
Civil terms: Third Wednesday in February,
April, June, August, October and December.
Patrick First Monday in March, June, September and
December.
Twenty-Second Danville First Monday in January, March, May, July,
September and November. Special terms: Last
Monday in April, June, August, and October.
Pittsylvania Third Monday in February, April, June,
August, October and December.
Franklin First Monday in February, April, June,
August, October and December.
Twenty-Third Roanoke County Criminal terms: First Friday in February,
April, June, October and December and the
second Friday in August. Civil terms: First
Friday in January, February, April, June,
August, October and December.
Roanoke City Criminal terms: First Monday in each month.
Civil terms: Tuesday after first Monday in
each month.
Salem Third Friday in February, May, July and
September and the second Friday in December.
Twenty-Fourth Lynchburg Criminal terms: First Monday in each month.
Civil terms: First Monday in each month.
Amherst Second Tuesday in February, April, June,
October and December.
Bedford First Tuesday in January, March, May, July,
September and November.
Campbell Second Monday in January, March, May, July,
September and November.
Nelson Fourth Tuesday in January, March, May,
September and November.
Twenty-Fifth Buena Vista Fourth Wednesday in January and July and the
first Monday in April, and the fourth Monday
in September.
Clifton Forge First Monday in February, May, July and
November.
Staunton Third Monday in January, April, July and
October.
Waynesboro Second Monday in January, March, May,
September and November.
Alleghany Second Monday in January, April and July,
and the first Tuesday after second Monday in
October.
Augusta Fourth Monday in January, April, July and
October.
Bath Third Monday (or Tuesday, if holiday falls
on Monday) in January, June and September
and the first Monday in April.
Botetourt First Monday in March, June, October and
December.
Craig Last Monday in February and the second
Monday in May, September and November.
Highland Third Tuesday in March, June, September and
December.
Rockbridge First Monday in February, May and November
and Tuesday following Labor Day in
September.
Twenty-Sixth Clarke Tuesday after the first Monday in January,
April, July and October.
Frederick Thursday after the first Monday in January,
April, July and October.
Page Fourth Monday in January, April, July and
October.
Shenandoah Wednesday after the second Monday in
January, April, July and October.
Warren First Monday in January, April, July and
October.
Winchester Tuesday after the second Monday in January,
April, July and October.
Rockingham Criminal terms: Third Monday in January,
April, July and October. Civil terms: First
Monday and Wednesday after third Monday each
month except Wednesday after third Monday
only in January and August.
Twenty-Seventh Bland Criminal terms: Second Monday in March,
June, September and December. Civil terms:
Immediately following end of criminal term.
Carroll The second Monday in March, the third Monday
in June and September and the first Monday
in December.
Floyd First day of March, June, September and
December.
Giles Second Tuesday in January, April, July and
October.
Grayson Fourth Friday in January, April, July and
October.
Montgomery Second Tuesday of January, April, July and
October.
Pulaski Third Monday in February and November, the
fourth Monday in May and the second Monday
in September.
Radford Third Monday in March and the tenth day in
June, September and December.
Wythe Third Monday in January, April, July and
October.
Twenty-Eighth Washington Fourth Tuesday in January, April, July and
October.
Smyth Fourth Tuesday in March, June and September
and second Tuesday in December.
Bristol Fourth Tuesday in February, May, August and
November.
Twenty-Ninth Buchanan Criminal terms: Second Monday in January,
April, July and October. Civil terms: Second
Tuesday in January, April, July and October.
Dickenson Criminal terms: Fourth Monday in March and
June and the third Monday in September and
December. Civil terms: Tuesday, following
Grand Jury (Grand Juries: Second Monday in
March, June and September; first Monday in
December).
Russell Second Monday in February, May, September
and November.
Tazewell Second Tuesday in February, May, August and
November.
Thirtieth Wise First Tuesday after the third Monday in
January and the third Monday in April, July
and October.
Scott First Monday in February, May, August and
November.
Lee First Monday in March, June and December and
second Monday in September.
Thirty-First Prince William First Monday in February, April, June,
August, October and December.
Rule 1:16 Size of Paper.
(a) All pleadings, motions, briefs, depositions, requests for discovery and responses thereto, and all other documents filed in any clerk's office in any proceeding pursuant to these Rules shall be produced on pages 8 1/2 by 11 inches in size and all typed material shall be double spaced except for quotations.
(b) This rulehall not apply to tables, charts, plats, photographs, and other material that cannot be reasonably reproduced on paper of that size.
(c) No paper shall be refused for failure to comply with the provisions of this Rule, but the clerk may require that the paper be redone in compliance with this Rule and substituted for the paper initially filed. Counsel shall certify that the substituted paper is identical in content to the paper initially filed.
(d) This rulehall become effective on January 1, 1984.
Rule 1:f-1 Appendix of Forms.
Rule 1:f-1.1 Praecipe (Rule 1:15(b)).
VIRGINIA: IN THE CIRCUIT COURT OF THE
..................,
Plaintiff
AT LAW NO. .....
v. or
.................., IN CHANCERY NO. .....
Defendant
PRAECIPE
I certify that the above styled cause is matured for trial on its merits and
request the Clerk to place it on the docket to be called on .................
date of next docket call
to be set for trial with ( ) or without ( ) a jury.
Dated this .......... day of .........., 19 .....
..............................................................................
Counsel for ..................................................................
CERTIFICATE OF SERVICE
I certify that on the .......... day of .........., 19...., I mailed or
delivered a true copy of the foregoing praecipe to all counsel of record
herein pursuant to the provisions of Rule 1:12 of the Rules of the Supreme
Court of Virginia, and served a true copy upon parties not represented by
counsel, if any.
..............................................................................
Counsel for .................................................................
Rule 1:f-2 Instructions (Rule 1:15(c)).
Counsel for all parties, unless compliance is waived by the court, shall, two days before a civil jury trial date, submit to the court a copy of all instructions such counsel proposes to request, noting thereon the authority or authorities relied upon for such instructions. Counsel may be required to exchange copies of proposed instructions. This rulehall not preclude the offering of additional instructions at the trial.
Rule 1A:1 PART ONE A
FOREIGN ATTORNEYS
Rule 1A:1.1 Foreign Attorneys - When Admitted to Practice in This State Without Examination.
Any person who has been admitted to practice law before the court of last resort of any state or territory of the United States or of the District of Columbia may file an application to be admitted to practice law in this Commonwealth without examination, if counsel licensed to practice here may be admitted to practice there without examination.
The applicant shall:
(1) File with the secretary of the Virginia Board of Bar Examiners an application, under oath, upon a form furnished by the Board.
(2) Furnish a certificate, signed by the presiding judge of the court of last resort of the jurisdiction in which the applicant is entitled to practice law, stating that the applicant has been so licensed for at least five years.
(3) Complete the Applicant's Character and Fitness Questionnaire and furnish a report of the National Conference of Bar Examiners, or such other report as the Board may prescribe, concerning the applicant's past practice and record, and pay the fee for such report.
(4) Pay a filing fee of five hundred dollars.
Thereafter, the Board will determine in accordance with guidelines approved by the Supreme Court whether the applicant has established by satisfactory evidence that he or she:
(a) Is a proper person to practice law.
(b) Has made such progress in the practice of law that it would be unreasonable to require the applicant to take an examination.
(c) Intends to practice full time as a member of the Virginia State Bar.
In the determination of these matters the Board may require the applicant to appear personally before the Board, the Character and Fitness Committee of the Board, or a member of either the Board or the Committee, and furnish such information as may be required.
If it is determined that the applicant has established that he or she meets all of the aforementioned requirements, the Board shall notify the applicant that some member of the Virginia State Bar who is qualified to practice before the Supreme Court may make an oral motion in open Court for the applicant's admission to practice law in this Commonwealth.
Upon such motion for admission, the applicant shall thereupon take and subscribe to the oaths required of attorneys at law, whereupon the Board shall issue to the applicant a certificate to practice law in the Commonwealth, and the applicant shall, upon payment of applicable dues, become an active member of the Virginia State Bar.
Rule 1A:2 Foreign Patent and Trademark Attorneys - When Admitted to Practice in the Courts of This State Limited to Patent and Trademark Law Without Examination.
A lawyer recognized to practice before the United States Patent and Trademark Office in patent and trademark cases, as that term is defined in § 54.1-3901(A), may file an application to be admitted to practice patent and trademark law, as that term is similarly defined, in the courts of this Commonwealth, without examination, if counsel licensed to practice here may be admitted to practice without examination in the state or territory of the United States or in the District of Columbia where such lawyer has been admitted to practice.
The applicant shall:
(1) File with the secretary of the Virginia Board of Bar Examiners an application, under oath, upon a form furnished by the Board.
(2) Furnish (i) a certificate, signed by the presiding judge of the court of last resort of the jurisdiction in which the applicant is entitled to practice law, stating that the applicant has been so licensed for at least five years, and (ii) a certificate, signed by the Commissioner of Patents and Trademarks or other appropriate official of the United States Patent and Trademark Office, stating that the applicant is recognized to practice before that office in patent and trademark cases.
(3) Complete the Applicant's Character and Fitness Questionnaire and furnish a report of the National Conference of Bar Examiners, or other such report as the Board may prescribe, concerning the applicant's past practice and record, and pay the fee for such report.
(4) Pay a filing fee of five hundred dollars.
Thereafter, the Board will determine in accordance with guidelines approved by the Supreme Court whether the applicant has established by satisfactory evidence that he or she:
(a) Is a proper person to practice law.
(b) Has made such progress in the practice of patent and trademark law that it would be unreasonable to require the applicant to take an examination.
(c) Intends to practice patent and trademark law full time as a member of the Virginia State Bar.
In the determination of these matters the Board may require the applicant to appear personally before the Board, the Character and Fitness Committee of the Board, or a member of either the Board or the Committee, and furnish such information as may be required.
If it is determined that the applicant has established that he or she meets all of the aforementioned requirements, the Board shall notify the applicant that some member of the Virginia State Bar who is qualified to practice before the Supreme Court may make an oral motion in open Court for the applicant's admission to practice patent and trademark law in this Commonwealth limited to patent, trademark, copyright and unfair competition causes.
Upon such motion for admission, the applicant shall thereupon take and subscribe to the oaths required of attorneys at law, whereupon the Board shall issue to the applicant a certificate to practice law in the Commonwealth limited to patent, trademark, copyright and unfair competition causes, and the applicant shall, upon payment of the applicable dues, become an active member of the Virginia State Bar.
No lawyer admitted pursuant to this rulehall hold himself or herself out as authorized to practice law generally in this Commonwealth.
Rule 1A:3 Revocation of Certificates Issued to Foreign Attorneys.
Following receipt of evidence satisfactory to the Supreme Court that a person who has been admitted to practice pursuant to Rule 1A:1 no longer satisfies the requirement of clause (c) of that section or that a person who has been admitted to practice pursuant to Rule 1A:2 no longer satisfies the requirement of clause (c) of that section, the Supreme Court may revoke the certificate issued to that person. Following receipt of evidence that a person who has been admitted to practice pursuant to Rule 1A:1 or Rule 1A:2 has been disbarred pursuant to Part Six of the Rules, the Supreme Court will revoke the certificate issued to that person.
Rule 1A:4 Foreign Attorneys - When Allowed by Comity to Participate in the Trial of a Case.
An attorney from another jurisdiction may be permitted to appear in and conduct a particular case in association with a member of the Virginia State Bar, if like courtesy or privilege is extended to members of the Virginia State Bar in such other jurisdiction. The court in which such case is pending shall have full authority to deal with the resident counsel alone in all matters connected with the litigation. If it becomes necessary to serve notice or process in the case upon counsel, any notice or process served upon the associate resident counsel shall be as valid as if personally served upon the nonresident attorney.
Except where a party conducts his own case, a pleading, or other paper required to be served (whether relating to discovery or otherwise) shall be invalid unless it is signed by a member of the Virginia State Bar.
Rule 2:1 PART TWO
EQUITY PRACTICE AND PROCEDURE
Rule 2:1.1 Filing of Pleadings.
Pleading permitted to be filed by these Rules or by leave of court shall be filed by the clerk when tendered and the date of filing noted and attested thereon.
Rule 2:2 Commencement of Suits in Equity - The Bill of Complaint.
A suit in equity shall be commenced by filing a bill of complaint in the clerk's office. The suit is then instituted and pending as to all parties defendant thereto. The statutory writ tax and clerk's fees shall be paid before the subpoena in chancery is issued.
The bill shall be captioned with the name of the court and the full style of the suit. The requirements of Code §8.01-290 may be met by giving the address or other data after the name of each defendant.
It shall be sufficient for the prayer of the bill to ask for the specific relief sought, and to call for answer under oath if desired. Without more it will be understood that all the defendants mentioned in the caption are made parties defendant and required to answer the bill of complaint; that proper process against them is requested; that answers under oath are waived, except when required by law; that all proper references, inquiries, accounts and decrees are sought; and that such other and further and general relief as the nature of the case may require and to equity may seem meet is prayed for and may be granted. No formal conclusion is necessary.
Rule 2:3 Copies of Bill of Complaint.
The plaintiff shall furnish the clerk when the bill is filed with as many copies thereof as there are defendants upon whom it is to be served.
It is not required that copies of exhibits filed with the bill be furnished or served.
A deficiency in the number of copies of the bill shall not affect the pendency of the suit. If the plaintiff fails to furnish the required number of copies, the clerk shall request him to do so, and if he fails to do so promptly, the clerk shall bring the fact to the attention of the judge, who shall notify the plaintiff's counsel, or the plaintiff if he have no counsel, to furnish them by a specified date. If the required copies are not furnished on or before that date, the court may enter an order dismissing the suit.
Rule 2:4 The Subpoena in Chancery.
The process of the courts in equity suits shall be a subpoena in chancery in substantially this form:
Commonwealth of Virginia
In the ......... Court of the ...... of ....................................
Subpoena in Chancery
Suit No. ...
The party upon whom this writ and the attached paper are served is hereby
notified that unless within twenty-one (21) days after such service response
is made by filing in the clerk's office of this court a pleading in writing,
in proper legal form, the allegations and charges may be taken as admitted and
the court may enter a decree against such party either by default or after
hearing evidence.
Appearance in person is not required by this subpoena.
Done in the name of the Commonwealth of Virginia, this ..... day of ...,
19..
...................., Clerk.
Upon the commencement of a suit in equity defendants may appear voluntarily and file responsive pleadings and may appear voluntarily and waive process, but in cases of divorce or annulment of marriage only in accordance with the provisions of the controlling statutes. With respect to defendants who do not appear voluntarily and/or file responsive pleadings or waive service of process, the clerk shall issue subpoenas and securely attach one to and upon the front of each copy of the bill to be served. The copies of the bill, with a subpoena so attached, shall be delivered by the clerk for service together as the plaintiff may direct.
Except when he is sued for divorce or annulment of his marriage or a judgment in personam is sought against him, a subpoena need not be issued for or served upon a defendant who is a person under a disability (except as otherwise provided in § 8.01-297), the procedure described in Code §8.01-9 constituting due process as to such defendants.
The clerk shall on request issue additional subpoenas, dating them as of the day of issuance.
No decree shall be entered against a defendant who was served with process more than one year after the institution of the suit against him unless the court finds as a fact that the plaintiff exercised due diligence to have timely service on him.
Rule 2:5 Proof of Service.
Returns shall be made on a paper styled "Proof of Service" which shall be substantially in this form:
Virginia: In the ........................ Court of the ............... of ..........: .................... ) ) v. (short style) ) Proof of Service ) .................... ) Returns shall be made hereon, showing service of subpoena in chancery issued ...................., 19 ...., with copy of bill of complaint filed ............, 19 ...., attached.
The clerk shall prepare as many as may be needed and deliver them with the subpoena and copies of the bill.
Returns shall be made thereon and shall show when, where, how and upon whom service was made.
The subpoena with copy of the bill attached shall constitute and be served as one paper.
It shall be the duty of all persons eligible to serve process to make service within five days after receipt, and make return as to those served within seventy-two hours after the earliest service upon any party shown on each Proof of Service; but failure to make timely service and return shall not prejudice the rights of any party except as provided in Rule 2:4.
Additional copies of the Proof of Service may be obtained from the clerk and returns thereon made in similar manner.
Rule 2:6 Orders of Publication. (Rescinded, Reserved for Future Use.)
Rule 2:7 Defendant's Response.
A defendant may at any time before he is in default file in the clerk's office his pleadings in response.
The cause is set for hearing and docketed as to each defendant when his pleading is filed, whether upon voluntary appearance or in response to process.
A defendant is "in default" if he has not filed a pleading and (1) a period of more than twenty-one days has elapsed after (i) due service of a subpoena in chancery upon him in this State, (ii) due service upon him outside this State under Code §8.01-320, or (iii) his acceptance or waiver of process, or (2) the period within which he may appear to protect his interests, as specified in an order of publication duly executed, has elapsed.
Rule 2:8 Docketing Upon Default.
If a defendant fails to file a pleading before he is in default, the cause is set for hearing and docketed as to such defendant and, unless the suit is for divorce or annulling a marriage or unless the defendant was served by order of publication and has not appeared generally, the bill is taken for confessed as to him. No decree on default shall be entered when service of process is effected by posting pursuant to § 8.01-296(2)(b), until ten days' notice shall have been given as required by that section.
Rule 2:9 Provisions Applicable Only to Suits for Divorce or for Annulling a Marriage. (Rescinded, Reserved for Future Use.)
Rule 2:10 Replication.
Unless the plaintiff expressly declines to reply to an answer or plea he shall be deemed to have filed a general replication thereto.
Rule 2:11 Pleas in Abatement. (Rescinded, Reserved for Future Use.)
Rule 2:12 Answer.
When the court has entered its order overruling all motions, demurrers and other pleas filed by a defendant, such defendant shall, unless he has already done so, file his answer within twenty-one days after the entry of such order, or within such shorter or longer time as the court may prescribe. If he fails to do so the bill shall, except in suits for annulling a marriage or for divorce, stand taken for confessed as to him. But in no case shall the bill stand for confessed or shall relief in personam be granted against a defendant proceeded against by order of publication who has not appeared generally.
Rule 2:13 Cross-Bill Against Plaintiff.
A defendant may, at any time when he would not be in default if he had not filed a pleading, or thereafter by leave of court, file a cross-bill which seeks relief against the plaintiff but not against other defendants or third parties. When such a cross-bill is filed, it shall not be necessary to issue process thereon against the plaintiff, but the cross-bill shall be served as provided by Rule 1:12 and, in a suit for divorce or for annulling a marriage, shall not be taken for confessed.
The plaintiff shall file his pleadings in response to such cross-bill within twenty-one days after it is served.
Rule 2:14 Cross-Bill Against Codefendants or Third Parties.
A defendant may by cross-bill, filed at any time before he is in default, or thereafter by leave of court, assert against other defendants or against new parties any claim germane to the subject matter of the suit.
Such a cross-bill is a new suit and all provisions of these Rules applicable to bills and subpoenas, except those provisions requiring payment of writ tax and clerk's fees, shall apply to such cross-bills, and all provisions of these Rules applicable to defendants shall apply to parties on whom such cross-bills are served.
Rule 2:15 Interveners.
A new party may by petition filed by leave of court assert any claim or defense germane to the subject matter of the suit.
All provisions of these Rules applicable to bills and subpoenas, except those provisions requiring payment of writ tax and clerk's fees, shall apply to such petitions; and all provisions of these Rules applicable to defendants shall apply to the parties on whom such petitions are served.
In creditors' suits, mechanics' lien suits, and the like, the practice as respects interveners obtaining prior to the adoption of these Rules is retained.
Rule 2:16 Substitution of Parties.
If a party becomes incapable of prosecuting or defending because of death, insanity, conviction of felony, removal from office, or other cause, his successor in interest may be substituted as a party in his place.
Substitution shall be made on motion of the successor or of any party to the suit. If the successor does not make or consent to the motion, the party making the motion shall file it in the clerk's office and the procedure thereon shall be as if the motion were a bill against the successor.
Rule 2:17 When Notice of Taking Proofs and Other Proceedings Dispensed With.
No notice of the taking of depositions, or of hearings before a commissioner, or of the hearing of evidence orally before the court, or of any other proceedings, shall be required to be given to any defendant as to whom a bill stands taken for confessed, or to any defendant proceeded against by order of publication, or to any defendant served with process out of state, except that written notice of any further proceedings shall be given to counsel of record, if any.
Evidence may be heard orally before the court in any case; but if there are defendants proceeded against by order of publication who have not appeared, such evidence shall be reduced to writing and preserved as a part of the record. In other cases preservation of the evidence may be required by the judge in his discretion.
Rule 2:18 Proceedings Before a Commissioner in Chancery.
(a) Upon entry of a decree by the court referring any matter to a commissioner in chancery, the clerk shall mail or deliver to the commissioner a copy of the decree of reference. Unless the decree prescribes otherwise, the commissioner shall promptly set a time and place for the first meeting of the parties or their attorneys, and shall notify the parties or their attorneys of the time and place so set. It shall be the duty of the commissioner to proceed with all reasonable diligence to execute the decree of reference.
(b) A commissioner may require the production before him of evidence upon all matters embraced in the decree of reference including the production of all books, papers, vouchers, documents and writings applicable thereto. He shall have the authority to call witnesses or the parties to the action to testify before him and may himself examine them upon oath. He may Rule upon the admissibility of evidence unless otherwise directed by the decree of reference; but when a party so requests, the commissioner shall cause a record to be made of all proffered evidence which is excluded by the commissioner as inadmissible.
(c) The Commissioner shall prepare a report stating his findings of fact and conclusions of law with respect to the matters submitted to him by the decree of reference. He shall file the report, together with all exhibits admitted in evidence and a transcript of the proceedings and of the testimony before him, with the clerk of the court. He shall mail or deliver to counsel of record and to parties not represented by counsel, using the last address shown in the record, written notice of the filing of the report. Provided, however, that in divorce cases a copy of the report shall accompany the notice. Provided, further, that no such notice or copy shall be given parties who have not appeared in the proceeding.
Rule 2:19 Matters Not Covered by These Rules.
In matters not covered by these Rules the established practice and procedure in equity is continued.
Rule 2:20 Statutory Interpleader.
Proceedings brought pursuant to statutory provisions relating to interpleader shall, to the extent not inconsistent with the governing statutes, be conducted in accordance with the Rules contained in this Part Two.
Rule 2:21 Summary Judgment.
Except in a suit for divorce or for the annulment of marriage, either party may make a motion for summary judgment at any time after the parties are at issue. If it appears from the pleadings, the orders, if any, made at a pretrial conference, the admissions, if any, in the proceedings, or, upon sustaining a motion to strike the evidence, that the moving party is entitled to judgment, the court shall enter judgment in his favor. Summary judgment, interlocutory in nature, may be entered as to the undisputed portion of a contested claim or on the issue of liability alone although there is a genuine issue as to the amount of damages. Summary judgment shall not be entered if any material fact is genuinely in dispute. No motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the action shall agree that such deposition may be so used.
Rule 2A:1 PART TWO A
APPEALS PURSUANT TO THE ADMINISTRATIVE PROCESS ACT
Rule 2A:1.1 Authorization; Definitions; Application.
(a) These Rules are promulgated pursuant to §9-6.14:16 of the Code of Virginia.
(b) All terms used in this part that are defined in Chapter 1.1:1 of Title 9 are used with the definitions therein contained. In addition, the term "agency secretary" means the secretary of the agency or, if there be none, the executive officer or a member of the agency. Every agency may, by regulation, name some individual to perform the function of agency secretary. The term "party" means any person affected by and claiming the unlawfulness of a regulation or a party aggrieved who asserts a case decision is unlawful and any other affected person or aggrieved person who appeared in person or by counsel at a hearing, as defined in §9-6.14:4 E, with respect to the regulation or case decision as well as the agency itself.
(c) These Rules shall apply to the review of, by way of direct appeal from, the adoption of a regulation or the decision of a case by an agency.
Rule 2A:2 Notice of Appeal.
Any party appealing from a regulation or case decision shall file, within 30 days after adoption of the regulation or after service of the final order in the case decision, with the agency secretary a notice of appeal signed by him or his counsel. In the event that service of a case decision upon a party is accomplished by mail, 3 days shall be added to the 30-day period. Service under this rulehall be consistent with §9-6.14:14 and, if made by mail, shall be sufficient if sent by registered or certified mail to the party's last address known to the agency. The notice of appeal shall identify the regulation or case decision appealed from, shall state the names and addresses of the appellant and of all other parties and their counsel, if any, shall specify the circuit court to which the appeal is taken, and shall conclude with a certificate that a copy of the notice of appeal has been mailed to each of the parties. Any copy of a notice of appeal that is sent to a party's counsel or to a party's registered agent, if the party is a corporation, shall be deemed adequate and shall not be a cause for dismissal of the appeal; provided, however, sending a notice of appeal to an agency's counsel shall not satisfy the requirement that a notice of appeal be filed with the agency secretary. The omission of a party whose name and address cannot, after due diligence, be ascertained shall not be cause for dismissal of the appeal. Any final agency case decision as described in §9-6.14:14 shall advise the party of the time for filing a notice of appeal under this Rule.
Rule 2A:3 Record on Appeal.
(a) If a formal hearing was held before the agency, the appellant shall deliver to the agency secretary with his notice of appeal, or within 30 days thereafter, a transcript of the testimony if it was taken down in writing, or if it was not taken down in writing, a statement of the testimony in narrative form. If the agency secretary deems the statement inaccurate, he may append a further statement specifying the inaccuracies.
(b) The agency secretary shall prepare and certify the record as soon as possible after the notice of appeal and transcript or statement of testimony is filed and shall, as soon as it has been certified by him, transmit the record to the clerk of the court named in the notice of appeal. In the event of multiple appeals in the same proceeding, only one record need be prepared and it shall be transmitted to the clerk of the court named in the first notice of appeal filed. If there are multiple appeals to different courts from the same regulation or case decision, all such appeals shall be transferred to and heard by the court having jurisdiction that is named in the notice of appeal that is the first to be filed. The agency secretary shall notify all parties in writing when the record is transmitted, naming the court to which it is transmitted. Papers filed in any other clerk's office shall be mailed by such clerk to the proper clerk's office.
(c) The record on appeal from an agency proceeding shall consist of all notices of appeal, any application or petition, all orders or regulations promulgated in the proceeding by the agency, the opinions, the transcript or statement of the testimony filed by appellant, and all exhibits accepted or rejected, together with such other material as may be certified by the agency secretary to be a part of the record.
Rule 2A:4 Petition for Appeal.
(a) Within 30 days after the filing of the notice of appeal, the appellant shall file his petition for appeal with the clerk of the circuit court named in the first notice of appeal to be filed. Such filing shall include all steps provided in Rules 2:2 and 2:3 to cause a copy of the petition to be served (as in the case of a bill of complaint in equity) on the agency secretary and on every other party.
(b) The petition for appeal shall designate the regulation or case decision appealed from, specify the errors assigned, state the reasons why the regulation or case decision is deemed to be unlawful and conclude with a specific statement of the relief requested.
Rule 2A:5 Further Proceedings.
Further proceedings shall be held as in a suit in equity and the Rules contained in Part Two, where not in conflict with the Code of Virginia or this part, shall apply, but no matter shall be referred to a commissioner in chancery. The provisions of Part Four shall not apply and, unless ordered by the court, depositions shall not be taken.
Rule 3:1 PART THREE
PRACTICE AND PROCEDURE IN ACTIONS AT LAW
Rule 3:1.1 Application.
These Rules apply to all civil actions at law in a court of record seeking a judgment in personam for money only, actions for establishment of boundaries, ejectment, unlawful detainer, detinue, a refund of taxes and declaratory judgments (when at law), including cases appealed or removed to such courts from inferior courts whenever applicable to such cases. In matters not covered by these Rules, the established practices and procedures are continued.
Rule 3:2 Filing of Pleadings; Return of Certain Writs.
The clerk shall receive and file all pleadings without order of the court. Any controversy over whether a party who has filed a pleading has a right to file it shall be decided by the court.
No writ shall be returnable more than ninety days after its date unless a longer period is provided by statute.
Rule 3:3 The Notice of Motion for Judgment.
(a) Commencement of Action. An action shall be commenced by filing in the clerk's office a motion for judgment. The action is then instituted and pending as to all parties defendant thereto. The statutory writ tax and clerk's fees shall be paid before the notice of motion for judgment is issued.
The motion shall contain a caption setting forth the name of the court and the title of the action, which shall include the names of all the parties. The requirements of Code §8.01-290 may be met by giving the address or other data after the name of each defendant.
(b) Copies to Be Served. The plaintiff shall furnish the clerk when the motion for judgment is filed with as many copies thereof as there are defendants upon whom it is to be served.
It is not required that copies of exhibits filed with the motion for judgment be furnished or served except when the exhibit is a statement of the account on which the action is brought.
A deficiency in the number of copies of the motion for judgment shall not affect the pendency of the action. If the plaintiff fails to furnish the required number of copies, the clerk shall request him to do so, and if he fails to do so promptly, the clerk shall bring the fact to the attention of the judge, who shall notify the plaintiff's counsel, or the plaintiff if he has no counsel, to furnish them by a specified date. If the required copies are not furnished on or before that date, the court may enter an order dismissing the action.
(c) Form of the Notice. The notice to be given of the motion for judgment shall be substantially in this form:
Commonwealth of Virginia
In the . . . . . . . . . . . . . . . . . . . Court of the
. . . . . . . . . . . of . . . . . . . . . . .:
Notice of Motion for Judgment
To: Action No. . . . . . . . . . . .
(insert names of all defendants)
You are hereby notified that unless within twenty-one (21) days after service of this notice of motion for judgment on you response is made by filing in the clerk's office of this court a pleading in writing, in proper legal form, judgment may be entered against you by default.
Done in the name of the Commonwealth of Virginia this . . . . . . . . . . .
day of . . . . . . . . . . . , 19 . . . . .
. . . . . . . . . . . . . . . . . . . . . ., Clerk.
The clerk shall issue the notice and attach it to a copy of the motion for judgment, and the combined papers shall constitute the notice of motion for judgment to be served as a single paper. The clerk shall deliver the notice of motion for judgment for service as plaintiff may direct. The clerk shall on request issue additional notices dating them as of the day of issuance.
No judgment shall be entered against a defendant who was served with process more than one year after the commencement of the action against him unless the court finds as a fact that the plaintiff exercised due diligence to have timely service on him.
Rule 3:4 Proof of Service.
Returns shall be made on a paper styled "Proof of Service" which shall be substantially in this form:
Virginia:
In the ........................ Court of the ............... of ..........:
.................... )
)
v. (short style) ) Proof of Service
)
.................... )
Returns shall be made hereon showing service of notice issued ........, 19
...., with copy of motion for judgment filed ............, 19 ...., attached.
The clerk shall prepare as many as may be needed and deliver them with the copies of the notice of motion for judgment.
Returns shall be made thereon and shall show when, where, how and upon whom service was made.
It shall be the duty of all persons eligible to serve process to make service within five days after receipt, and make return as to those served within seventy-two hours after the earliest service upon any party shown on each Proof of Service; but failure to make timely service and return shall not prejudice the rights of any party except as provided in Rule 3:3.
Additional copies of the Proof of Service may be obtained from the clerk and returns thereon made in similar manner.
Rule 3:5 Defendant's Response.
A defendant may within twenty-one days after service on him of the notice of motion for judgment file in the clerk's office his pleadings in response, and if he fails to file a pleading he is in default. A motion for a bill of particulars shall be deemed a pleading in response. Pleas of the general issue are abolished. If a defendant files no other pleading than grounds of defense, he shall file his grounds of defense within said time.
Rule 3:6 Pleas in Abatement. (Rescinded, Reserved for Future Use.)
Rule 3:7 Grounds of Defense.
When the court has entered its order overruling all motions, demurrers and other pleas filed by a defendant, such defendant shall, unless he has already done so, file his grounds of defense within twenty-one days after entry of such order, or within such shorter or longer time as the court may prescribe. If he fails to do so he is in default.
An order requiring or permitting the plaintiff to file a bill of particulars or amended motion for judgment shall fix the time within which it may be filed, and shall also fix the time within which the defendant shall file his pleadings, unless he relies on the pleadings already filed.
Rule 3:8 Counterclaim.
Within twenty-one days after service on him of the notice of motion for judgment, a defendant may, at his option, plead as a counterclaim any cause of action at law for a money judgment in personam that he has against the plaintiff or all plaintiffs jointly, whether or not it grows out of any transaction mentioned in the notice of motion for judgment, whether or not it is for liquidated damages, whether it is in tort or contract, and whether or not the amount demanded in the counterclaim is greater than the amount demanded in the notice of motion for judgment. The court in its discretion may order a separate trial of any cause of action asserted in a counterclaim.
Rule 3:9 Cross-Claim.
A defendant may, at his option, plead as a cross-claim any cause of action that he has or may have against one or more other defendants growing out of any matter pleaded in the motion for judgment. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. The court in its discretion may order a separate trial of any cause of action asserted in a cross-claim.
A cross-claim shall, subject to the provisions of Rule 1:9, be filed within twenty-one days after service of the notice of motion for judgment on the defendant asserting the cross-claim.
A cross-claim is a new action and all provisions of these Rules applicable to notices of motion for judgment shall apply to cross-claims, except those provisions requiring payment of writ tax and clerk's fees; and all provisions of these Rules applicable to defendants shall apply to the parties on whom cross-claims are served.
Rule 3:9A Joinder of Additional Parties.
(a) Persons to Be Joined if Feasible. A person who is subject to service of process may be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff.
(b) Method of Joinder. A motion to join an additional party shall, subject to the provisions of Rule 1:9, be filed with the clerk within twenty-one days after service of the motion for judgment and shall be served on the party sought to be joined who shall thereafter be subject to all provisions of these Rules, except the provisions requiring payment of writ tax and clerk's fees.
(c) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
(d) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a) hereof who are not joined, and the reasons why they are not joined.
Rule 3:10 Third-Party Practice.
(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may file and serve a third-party motion for judgment upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave therefor if he files the third-party motion for judgment not later than twenty-one days after he serves his original pleading in response. Otherwise he must obtain leave therefor on motion after notice to all parties to the action. The person served with the third-party motion for judgment, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff's claim as provided in Rules 3:5 and 3:7 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in rule 3:8 and 3:9. The third-party defendant may assert against the plaintiff any defenses that the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may, at his option, within twenty-one days after service of the third-party motion for judgment upon the third-party defendant, assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in rule 3:5 and 3:7 and his counterclaims and cross-claims, including claims against the plaintiff, as provided in rule 3:8 and 3:9. Any party may move to strike the third-party motion for judgment, or for its severance or separate trial. A third-party defendant may proceed under this Rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant.
(b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances that under this Rule would entitle a defendant to do so.
Rule 3:11 Pleading to Counterclaims and Cross-Claims.
A party on whom a counterclaim or cross-claim is served shall plead to it in the same manner as if it were a notice of motion for judgment.
Rule 3:12 Reply.
If a plea, motion or affirmative defense sets up new matter and contains words expressly requesting a reply, the adverse party shall within twenty-one days file a reply admitting or denying such new matter. If it does not contain such words, the allegation of new matter shall be taken as denied or avoided without further pleading. All allegations contained in a reply shall be taken as denied or avoided without further pleading.
Rule 3:13 Parties at Issue.
The parties are at issue and the case is matured for trial and shall be placed on the trial docket when the pleadings required to be filed have been filed, or the time for filing them has expired.
Rule 3:14 New Parties.
New parties may be added, by leave of court, on motion of the plaintiff by order of the court at any stage of the case as the ends of justice may require. The motion, accompanied by an amended motion for judgment, shall be served on the existing parties as required by Rule 1:12. If the motion is granted, the amended motion for judgment shall be filed in the clerk's office and all the provisions of Rule 3:3 shall apply as to the new parties, but no writ tax, clerk's fee or deposit for costs is required. And all defendants shall file pleadings in response thereto as required by these rule.
Rule 3:15 Substitution of Parties.
If a party becomes incapable of prosecuting or defending because of death, insanity, conviction of felony, removal from office, or other cause, his successor in interest may be substituted as a party in his place.
Substitution shall be made on motion of the successor or of any party to the action. If the successor does not make or consent to the motion, the party making the motion shall file it in the clerk's office and the procedure thereon shall be as if the motion were an original motion for judgment against the successor.
Rule 3:16 General Provisions as to Pleadings.
(a) All motions in writing, including a motion for a bill of particulars and a motion to dismiss, are pleadings.
(b) An allegation of negligence or contributory negligence is sufficient without specifying the particulars of the negligence. On motion made promptly, a bill of particulars may be ordered to amplify any pleading that does not, in the opinion of the court, comply with this Rule . A bill of particulars that fails to inform the opposite party fairly of the true nature of the claim or defense may, on motion made promptly, be stricken and an amended bill of particulars ordered. If the amended bill of particulars fails to inform the opposite party fairly of the true nature of the claim or defense, the pleading not so amplified and the bills of particulars may be stricken.
(c) Every order requiring a bill or amended bill of particulars shall fix the time within which it is to be filed.
(d) Contributory negligence shall not constitute a defense unless pleaded or shown by the plaintiff's evidence.
(e) An allegation that an action is barred by the statute of limitations is sufficient without specifying the particular statute relied on.
(f) Grounds of defense, counterclaims, cross-claims, pleas, demurrers, affirmative defenses and motions may all be included in the same paper if they are separately identified.
Rule 3:17 Judgment by Default.
A defendant who fails to plead to a notice of motion for judgment within the required time is in default. He waives trial by jury and all objections to the admissibility of evidence. He is not entitled to notice of any further proceedings in the case, including notice to take depositions, except that written notice of any further proceedings shall be given to counsel of record, if any. When service of process is effected by posting no judgment by default shall be entered until the requirements of Code § 8.01-296(2)(b) have been satisfied. The court shall, on motion of the plaintiff, enter judgment for the amount appearing to the court to be due. If the relief demanded is unliquidated damages, the court shall hear evidence and fix the amount thereof, unless the plaintiff demands trial by jury, in which event, a jury shall be impaneled to fix the amount of damages.
Rule 3:18 Summary Judgment.
Either party may make a motion for summary judgment at any time after the parties are at issue. If it appears from the pleadings, the orders, if any, made at a pretrial conference, the admissions, if any, in the proceedings, or, upon sustaining a motion to strike the evidence, that the moving party is entitled to judgment, the court shall enter judgment in his favor. Summary judgment, interlocutory in nature, may be entered as to the undisputed portion of a contested claim or on the issue of liability alone although there is a genuine issue as to the amount of damages. Summary judgment shall not be entered if any material fact is genuinely in dispute. No motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the action shall agree that such deposition may be so used.
Rule 3A:1 PART THREE A
CRIMINAL PRACTICE AND PROCEDURE
Rule 3A:1.1 Scope.
These rule govern criminal proceedings in circuit courts and juvenile and domestic relations district courts (except proceedings concerning a child in a juvenile and domestic relations district court) and before the magistrates defined in Rule 3A:2 except for cases which have been returned to the general district court. Special statutes applicable to practices and procedures in juvenile and domestic relations district courts are incorporated herein by this reference and in such cases shall prevail over the general Rule set forth in Part 3A.
Rule 3A:2 Purpose and Interpretation; Definitions.
(a) Purpose and Interpretation. These rule are intended to provide for the just determination of criminal proceedings. They shall be interpreted so as to promote uniformity and simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. Errors, defects, irregularities or variances that do not affect substantive rights shall not constitute reversible error.
(b) Definitions. Except as otherwise expressly provided in this Part Three A or unless the context otherwise requires:
(1) "Clerk" includes deputy clerk.
(2) "Commonwealth's attorney" includes assistant or acting Commonwealth's attorney.
(3) "Continuance" includes adjournment or recess.
(4) "Indictment" includes presentment and information filed upon presentment.
(5) "Magistrate" means a judicial or quasi-judicial officer authorized to issue arrest and search warrants, commit arrested persons to jail or admit them to bail, or conduct preliminary hearings.
(6) "Recognizance" means an undertaking, with or without surety or other security, made before a magistrate to perform one or more acts - for example, to appear in court. A recognizance may be written or oral but, if oral, shall be evidenced by a memorandum signed by the magistrate.
Rule 3A:3 The Complaint.
The complaint shall consist of sworn statements of a person or persons of fact relating to the commission of an alleged offense. The statements shall be made upon oath before a magistrate empowered to issue arrest warrants. The magistrate may require the sworn statements to be reduced to writing and signed.
Rule 3A:4 Arrest Warrant or Summons.
(a) Issuance. More than one warrant or summons may issue on the same complaint. A warrant may be issued by a judicial officer if the accused fails to appear in response to a summons.
(b) Form of Summons. A summons, whether issued by a magistrate or a law-enforcement officer, shall command the accused to appear at a stated time and place before a court of appropriate jurisdiction in the county, city or town in which the summons is issued. It shall (i) state the name of the accused or, if his name is unknown, set forth a description by which he can be identified with reasonable certainty, (ii) describe the offense charged and state whether the offense is a violation of state, county, city or town law, and (iii) be signed by the magistrate or the law-enforcement office, as the case may be.
(c) Execution and Return. If a warrant has been issued but the officer does not have the warrant in his possession at the time of the arrest, he shall (i) inform the accused of the offense charged and that a warrant has been issued, and (ii) deliver a copy of the warrant to the accused as soon thereafter as practicable.
Rule 3A:5 The Grand Jury.
(a) Who May Be Present. Only the grand jurors and the witness under examination and, if directed by the court, an interpreter shall be present during the hearing of evidence by a grand jury. Only the grand jurors shall be present during their deliberations and voting.
(b) Secrecy. No obligation of secrecy may be imposed upon any person except in accordance with law.
(c) Finding and Return of Indictment. The indictment shall be endorsed ""A True Bill'' or ""Not a True Bill'' and signed by the foreman. The indictment shall be returned by the grand jury in open court.
(d) Motion to Dismiss. A motion to dismiss the indictment may be based on constitutional objections to the array or on the lack of legal qualification of an individual juror.
Rule 3A:6 The Indictment and the Information.
(a) Contents. The indictment or information, in describing the offense charged, shall cite the statute or ordinance that defines the offense or, if there is no defining statute or ordinance, prescribes the punishment for the offense. Error in the citation of the statute or ordinance that defines the offense or prescribes the punishments therefor, or omission of the citation, shall not be grounds for dismissal of an indictment or information, or for reversal of a conviction, unless the court finds that the error or omission prejudiced the accused in preparing his defense.
(b) Joinder of Offenses. Two or more offenses, any of which may be a felony or misdemeanor, may be charged in separate counts of an indictment or information if the offenses are based on the same act or transaction, or on two or more acts or transactions that are connected or constitute parts of a common scheme or plan.
(c) Joinder of Defendants. Two or more accused may be charged with a count(s) of an indictment, if they are charged with participating in contemporaneous and related acts or occurrences or in a series of acts or occurrences constituting an offense or offenses.
(d) Form. The indictment or information need not contain a formal commencement or conclusion. The return of an indictment shall be signed by the foreman of the grand jury, and the information shall be signed by the Commonwealth's attorney.
Rule 3A:7 Capias or Summons Upon Indictment or Information.
(1) Capias. The form of the capias shall be the same as that provided for a warrant except that it shall be signed by the clerk and shall state that an indictment or information has been filed against the accused.
(2) Summons. The summons shall be in the same form as the capias except that it shall summons the accused to appear before the court at a stated time and place.
(1) Execution. The capias shall be executed as provided in Rule 3A:4(c).
(2) Return. The officer executing a capias or summons shall endorse the date of execution thereon and make return thereof to the court that issued the capias or summons. At the request of the Commonwealth's attorney made at any time while the indictment or information is pending, a capias returned unexecuted and not cancelled or a summons returned unexecuted or a duplicate thereof may be delivered by the clerk to any authorized person for execution.
Rule 3A:8 Pleas.
(a) Pleas by a Corporation. A corporation, acting by counsel or through an agent, may enter the same pleas as an individual.
(b) Determining Voluntariness of Pleas of Guilty or Nolo Contendere. A circuit court shall not accept a plea of guilty or nolo contendere without first determining that the plea is made voluntarily with an understanding of the nature of the charge and the consequences of the plea.
(1) The attorney for the Commonwealth and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon entry by the defendant of a plea of guilty, or in a misdemeanor case a plea of nolo contendere, to a charged offense, or to a lesser or related offense, the attorney for the Commonwealth will do any of the following:
(A) Move for nolle prosequi or dismissal of other charges;
(B) Make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding on the court;
(C) Agree that a specific sentence is the appropriate disposition of the case.
In any such discussions under this Rule , the court shall not participate.
(2) If a plea agreement has been reached by the parties, it shall, in every felony case, be reduced to writing, signed by the attorney for the Commonwealth, the defendant, and, in every case, his attorney, if any, and presented to the court. The court shall require the disclosure of the agreement in open court or, upon a showing of good cause, in camera, at the time the plea is offered. If the agreement is of the type specified in subdivision (c) (1) (A) or (C), the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider a presentence report. If the agreement is of the type specified in subdivision (c) (1) (B), the court shall advise the defendant that, if the court does not accept the recommendation or request, the defendant nevertheless has no right to withdraw his plea, unless the Commonwealth fails to perform its part of the agreement. In that event, the defendant shall have the right to withdraw his plea.
(3) If the court accepts the plea agreement, the court shall inform the defendant that it will embody in its judgment and sentence the disposition provided for in the agreement.
(4) If the agreement is of the type specified in subdivision (c) (1) (A) or (C) and if the court rejects the plea agreement, the court shall inform the parties of this fact, and advise the defendant personally in open court or, on a showing of good cause, in camera, that the court will not accept the plea agreement. Thereupon, neither party shall be bound by the plea agreement. The defendant shall have the right to withdraw his plea of guilty or plea of nolo contendere and the court shall advise the defendant that, if he does not withdraw his plea, the disposition of the case may be less favorable to him than that contemplated by the plea agreement; and the court shall further advise the defendant that, if he chooses to withdraw his plea of guilty or of nolo contendere, his case will be heard by another judge, unless the parties agree otherwise.
(5) Except as otherwise provided by law, evidence of a plea of guilty later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged, or any other crime, or of statements made in connection with and relevant to any of the foregoing pleas or offers, is not admissible in the case-in-chief in any civil or criminal proceeding against the person who made the plea or offer. But evidence of a statement made in connection with and relevant to a plea of guilty, later withdrawn, a plea of nolo contendere, or any offer to plead guilty or nolo contendere to the crime charged or to any other crime, is admissible in any criminal proceeding for perjury or false statement, if the statement was made by the defendant under oath and on the record. In the event that a plea of guilty or a plea of nolo contendere is withdrawn in accordance with this Rule , the judge having received the plea shall take no further part in the trial of the case, unless the parties agree otherwise.
Rule 3A:9 Pleadings and Motions for Trial; Defenses and Objections.
(a) Pleadings and Motions. Pleadings in a criminal proceeding shall be the indictment, information, warrant or summons on which the accused is to be tried and the plea of not guilty, guilty or nolo contendere. Defenses and objections made before trial that heretofore could have been made by other pleas or by demurrers and motions to quash shall be made only by motion to dismiss or to grant appropriate relief, as provided in these rule.
(1) Defenses and Objections That Must Be Raised Before Trial. Defenses and objections based on defects in the institution of the prosecution or in the written charge upon which the accused is to be tried, other than that it fails to show jurisdiction in the court or to charge an offense, must be raised by motion made within the time prescribed by paragraph (c) of this Rule . The motion shall include all such defenses and objections then available to the accused. Failure to present any such defense or objection as herein provided shall constitute a waiver thereof. Lack of jurisdiction or the failure of the written charge upon which the accused is to be tried to state an offense shall be noticed by the court at any time during the pendency of the proceeding.
(2) Defenses and Objections That May Be Raised Before Trial. In addition to the defenses and objections specified in subparagraph (b) (1) of this Rule , any defense or objection that is capable of determination without the trial of the general issue may be raised by motion before trial. Failure to present any such defense or objection before the jury returns a verdict or the court finds the defendant guilty shall constitute a waiver thereof.
(3) Form of Motion. Any motion made before trial shall be in writing if made in a circuit court, unless the court for good cause shown permits an oral motion. A motion shall state with particularity the grounds or grounds on which it is based.
(4) Hearing on Motion. A motion before trial raising defenses or objections shall be determined before the trial unless the court orders that it be deferred for determination at the trial of the general issue. An issue of fact shall be heard and determined by the court, unless a jury trial is required by constitution or statute.
(5) Effect of Determination. If a motion is determined adversely to the accused, his plea shall stand or he may plead over or, if the accused has not previously pleaded, he shall be permitted to plead. The motion need not be renewed if the accused properly saves the point for the purpose of appeal when the court first determines the motion.
(c) Time of Filing Notice or Making Motion. A motion referred to in subparagraph (b) (1) shall be filed or made before a plea is entered and, in a circuit court, at least 7 days before the day fixed for trial, and a copy of such motion shall, at the time of filing, be mailed to the judge of the circuit court who will hear the case, if known.
(d) Relief From Waiver. For good cause shown the court may grant relief from any waiver provided for in this Rule .
Rule 3A:10 Trial Together of More Than One Accused or More Than One Offense.
(a) More Than One Accused - Joinder of Defendants. On motion of the Commonwealth, for good cause shown, the court, in its discretion, may order persons charged with participating in contemporaneous and related acts or occurrences or in a series of acts or occurrences constituting an offense or offenses to be tried jointly unless such joint trial would constitute prejudice to a defendant.
(b) More Than One Accused - Severance of Defendants. If the court finds that a joint trial would constitute prejudice to a defendant, the court shall order severance as to that defendant or provide such other relief as justice requires.
(c) An Accused Charged With More Than One Offense. The court may direct that an accused be tried at one time for all offenses then pending against him, if justice does not require separate trials and (i) the offenses meet the requirements of Rule 3A:6 (b) or (ii) the accused and the Commonwealth's attorney consent thereto.
Rule 3A:11 Discovery and Inspection.
(a) Application of Rule . This Rule applies only to prosecution for a felony in a circuit court.
(1) Upon written motion of an accused a court shall order the Commonwealth's attorney to permit the accused to inspect and copy or photograph any relevant (i) written or recorded statements or confessions made by the accused, or copies thereof, or the substance of any oral statements or confessions made by the accused to any law enforcement officer, the existence of which is known to the attorney for the Commonwealth, and (ii) written reports of autopsies, ballistic tests, fingerprint analyses, handwriting analyses, blood, urine and breath tests, other scientific reports, and written reports of a physical or mental examination of the accused or the alleged victim made in connection with the particular case, or copies thereof, that are known by the Commonwealth's attorney to be within the possession, custody or control of the Commonwealth.
(2) Upon written motion of an accused a court shall order the Commonwealth's attorney to permit the accused to inspect and copy or photograph designated books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, that are within the possession, custody, or control of the Commonwealth, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. This subparagraph does not authorize the discovery or inspection of statements made by Commonwealth witnesses or prospective Commonwealth witnesses to agents of the Commonwealth or of reports, memoranda or other internal Commonwealth documents made by agents in connection with the investigation or prosecution of the case, except as provided in clause (ii) of subparagraph (b)(1) of this Rule .
(c) Discovery by the Commonwealth. If the court grants relief sought by the accused under clause (ii) of subparagraph (b) (1) or under subparagraph (b) (2) of this Rule , it shall, upon motion of the Commonwealth, condition its order by requiring that:
(1) The accused shall permit the Commonwealth within a reasonable time but not less than ten (10) days before trial or sentencing, as the case may be, to inspect, copy or photograph any written reports of autopsy examinations, ballistic tests, fingerprint, blood, urine and breath analyses, and other scientific tests that may be within the accused's possession, custody or control and which the defense intends to proffer or introduce into evidence at trial or sentencing.
(2) The accused disclose whether he intends to introduce evidence to establish an alibi and, if so, that the accused disclose the place at which he claims to have been at the time of the commission of the alleged offense.
(3) If the accused intends to rely upon the defense of insanity or feeble-mindedness, the accused shall permit the Commonwealth to inspect, copy or photograph any written reports of physical or mental examination of the accused made in connection with the particular case, provided, however, that no statement made by the accused in the course of an examination provided for by this Rule shall be used by the Commonwealth in its case-in-chief, whether the examination shall be with or without the consent of the accused.
(d) Time of Motion. A motion by the accused under this Rule must be made at least 10 days before the day fixed for trial. The motion shall include all relief sought under this Rule . A subsequent motion may be made only upon a showing of cause why such motion would be in the interest of justice.
(e) Time, Place and Manner of Discovery and Inspection. An order granting relief under this Rule shall specify the time, place and manner of making the discovery and inspection permitted and may prescribe such terms and conditions as are just.
(f) Protective Order. Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted or deferred, or make such other order as is appropriate. Upon motion by the Commonwealth the court may permit the Commonwealth to make such showing, in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court denies discovery or inspection following a showing in camera, the entire text of the Commonwealth's statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the accused.
(g) Continuing Duty to Disclose; Failure to Comply. If, after disposition of a motion filed under this Rule , and before or during trial, counsel or a party discovers additional material previously requested or falling within the scope of an order previously entered, that is subject to discovery or inspection under this Rule , he shall promptly notify the other party or his counsel or the court of the existence of the additional material. If at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with this Rule or with an order issued pursuant to this Rule , the court shall order such party to permit the discovery or inspection of materials not previously disclosed, and may grant such other relief as it may deem appropriate.
Rule 3A:12 Subpoena.
(a) For Attendance of Witnesses. A subpoena for the attendance of a witness to testify before a court not of record shall be issued by the judge, clerk, magistrate, or Commonwealth's attorney. A subpoena for the attendance of a witness to testify before a circuit court or a grand jury shall be issued by the clerk or Commonwealth's attorney. The subpoena shall (i) be directed to an appropriate officer or officers, (ii) name the witness to be summoned, (iii) state the name of the court and the title, if any, of the proceeding, (iv) command the officer to summon the witness to appear at the time and place specified in the subpoena for the purpose of giving testimony, and (v) state on whose application the subpoena was issued.
No subpoena or subpoena duces tecum shall be issued in any criminal case or proceeding, including any proceeding before any grand jury, which subpoena or subpoena duces tecum is (i) directed to a member of the bar of this Commonwealth or any other jurisdiction, and (ii) compels production or testimony concerning any present or former client of the member of the bar, unless the subpoena request has been approved in all specifics, in advance, by a judge of the circuit court wherein the subpoena is requested after reasonable notice to the attorney who is the subject of the proposed subpoena. The proceedings for approval may be conducted in camera, in the judge's discretion, and the judge may seal such proceedings. Such subpoena request shall be made by the Commonwealth's attorney for the jurisdiction involved, either on motion of the Commonwealth's attorney or upon request to the Commonwealth's attorney by the foreman of any grand jury.
(b) For Production of Documentary Evidence and of Objects Before a Circuit Court. Upon notice to the adverse party and on affidavit by the party applying for the subpoena that the requested writings or objects are material to the proceedings and are in the possession of a person not a party to the action, the judge or the clerk may issue a subpoena duces tecum for the production of writings or objects described in the subpoena. Such subpoena shall command either (1) that the individual to whom it is addressed shall appear in person and with the items described either before the court or the clerk or (2) that such individual shall deliver the items described to the clerk. The subpoena may direct that the writing or object be produced at a time before the trial or before the time when it is to be offered in evidence.
(c) Service and Return. A subpoena may be executed anywhere in the State by an officer authorized by law to execute the subpoena in the place where it is executed. The officer executing a subpoena shall make return thereof to the court named in the subpoena.
(d) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court to which the subpoena is returnable.
(e) Recognizance of a Witness. If it appears that the testimony of a person is material in any criminal proceeding, a judicial officer may require him to give a recognizance for his appearance.
Rule 3A:13 Trial by Jury or by Court.
(a) Right to Jury; Duty of Court in Nonjury Trial. The accused is entitled to a trial by jury only in a circuit court on a plea of not guilty.
(b) Waiver of Jury in Circuit Court. If an accused who has pleaded not guilty in a circuit court consents to trial without a jury, the court may, with the concurrence of the Commonwealth's attorney, try the case without a jury. The court shall determine before trial that the accused's consent was voluntarily and intelligently given, and his consent and the concurrence of the court and the Commonwealth's attorney shall be entered of record.
Rule 3A:14 Trial Jurors.
(a) Examination. After the prospective jurors are sworn on the voir dire, the court shall question them individually or collectively to determine whether anyone:
(1) Is related by blood or marriage to the accused or to a person against whom the alleged offense was committed;
(2) Is an officer, director, agent or employee of the accused;
(3) Has any interest in the trial or the outcome of the case;
(4) Has acquired any information about the alleged offense or the accused from the news media or other sources and, if so, whether such information would affect his impartiality in the case;
(5) Has expressed or formed any opinion as to the guilt or innocence of the accused;
(6) Has a bias or prejudice against the Commonwealth or the accused; or
(7) Has any reason to believe he might not give a fair and impartial trial to the Commonwealth and the accused based solely on the law and the evidence.
Thereafter, the court, and counsel as of right, may examine on oath any prospective juror and ask any question relevant to his qualifications as an impartial juror. A party objecting to a juror may introduce competent evidence in support of the objection.
(b) Challenge for Cause. The court, on its own motion or following a challenge for cause, may excuse a prospective juror if it appears he is not qualified, and another shall be drawn or called and placed in his stead for the trial of that case.
Rule 3A:15 Motion to Strike or to Set Aside Verdict; Judgment of Acquittal or New Trial.
(a) Motion to Strike Evidence. After the Commonwealth has rested its case or at the conclusion of all the evidence, the court on motion of the accused may strike the Commonwealth's evidence if the evidence is insufficient as a matter of law to sustain a conviction. If the court overrule a motion to strike the evidence and there is a hung jury, the accused may renew the motion within the time specified in Rule 1:11 and the court may take the action authorized by the Rule .
(b) Motion to Set Aside Verdict. If the jury returns a verdict of guilty, the court may, on motion of the accused made not later than 21 days after entry of a final order, set aside the verdict for error committed during the trial or if the evidence is insufficient as a matter of law to sustain a conviction.
(c) Judgment of Acquittal or New Trial. The court shall enter a judgment of acquittal if it strikes the evidence or sets aside the verdict because the evidence is insufficient as a matter of law to sustain a conviction. The court shall grant a new trial if it sets aside the verdict for any other reason.
Rule 3A:16 Instructions.
(a) Giving of Instructions. In a felony case, the instructions shall be reduced to writing. In all cases the court shall instruct the jury before arguments of counsel to the jury.
(b) Proposed Instructions. If directed by the court the parties shall submit proposed instructions to the court at such reasonable time before or during the trial as the court may specify and, whether or not proposed instructions have been submitted earlier, the parties may submit proposed instructions at the conclusion of all the evidence.
(c) Objections. Before instructing the jury, the court shall advise counsel of the instructions to be given and shall give counsel the opportunity to make objections thereto. Objections shall be made out of the presence of the jury, and before the court instructs the jury unless the court grants leave to make objections at a later time.
(d) Alternative Forms of Verdicts; Separate Verdicts. The court may submit alternate forms of verdicts to the jury. The jury shall be instructed to return a separate verdict on each count of an indictment or presentment.
Rule 3A:17 Jury Verdicts.
(a) Return. In all criminal prosecutions, the verdict shall be unanimous, in writing and signed by the foreman, and returned by the jury in open court.
(b) Several Accused. If there are two or more accused, the jury may return a verdict as to any of them as to whom it can agree.
(c) Conviction of Lesser Offense. The accused may be found not guilty of an offense charged but guilty of any offense, or of an attempt to commit any offense, that is substantially charged or necessarily included in the charge against the accused. When the offense charged is a felony, the accused may be found not guilty thereof, but guilty of being an accessory after the fact to that felony.
(d) Poll of Jury. When a verdict is returned, the jury shall be polled individually at the request of any party or upon the court's own motion. If upon the poll, all jurors do not agree, the jury may be directed to retire for further deliberations or may be discharged.
Rule 3A:17.1 Proceedings in Bifurcated Jury Trials of Non-Capital Felonies.
(a) Application. This Rule applies in cases of trial by jury upon a finding that the defendant is guilty of a non-capital felony.
(b) Bifurcated Proceedings. In any jury trial in which the jury returns a verdict of guilty to one or more non-capital felony offenses, a separate proceeding limited to the ascertainment of punishment shall be held as soon as practicable before the same jury.
(c) Instruction at Guilt Phase. At the conclusion of all of the evidence in the guilt phase of the trial, the court shall instruct the jury as to punishment with respect to any misdemeanor being tried in the same proceeding or any lesser-included misdemeanor of any charged felony offense which may be properly considered by the jury. The jury shall not be instructed until the punishment phase with reference to the punishment for any charged or lesser-included felony offense.
(d) Opening Statements at Penalty Phase. Both the Commonwealth and the defense shall be entitled if they choose, to make an opening statement prior to the presentation of any evidence to the jury relevant to the penalty to be imposed. The Commonwealth shall give its statement first.
(e) Presentation of Evidence at Penalty Phase. If the jury convicts the defendant of one or more non-capital felony offenses, the penalty phase shall proceed in the following order:
(1) The Commonwealth may introduce certified, attested, or exemplified copies of the accused's record of conviction(s) as provided by law. As a prerequisite to the introduction of such records of conviction, the Commonwealth shall have advised the defense, in accord with the requirements of law, of its intention to introduce such evidence.
(2) The defense may introduce relevant admissible evidence related to punishment. The defense shall have the opportunity to present such evidence irrespective of whether or not the Commonwealth presents evidence of previous criminal history.
(3) The Commonwealth may introduce relevant admissible evidence related to punishment in rebuttal.
(4) The defense may introduce relevant, admissible evidence related to punishment in rebuttal.
(f) Closing Arguments at Penalty Phase. Both the Commonwealth and defense shall be entitled to make a closing argument on the subject of punishment if they elect to do so. The Commonwealth shall be given the opportunity to argue first, followed by the defense. Rebuttal argument may be made by the Commonwealth.
(g) Change of Plea. The accused may enter a plea of guilty to the whole of the indictment at any time until the jury returns a verdict on the issue of the defendant's guilt or innocence.
(h) Mistrial Upon a Non-Unanimous Jury at the Penalty Phase. Should the jury fail to reach unanimous agreement as to punishment on any charge for which it returned a verdict of guilty, a mistrial shall be declared as to that count and that charge shall be retried as to guilt or innocence as to the offense for which a verdict of guilty was returned. If the original jury returned a guilty verdict to a lesser-included felony, but failed to be unanimous in determining punishment, retrial shall be upon the lesser-included felony. If the defendant, the attorney for the Commonwealth and the court agree, rather than declare a mistrial, the court shall fix punishment in the manner provided in Section 19.2-257, for the offense upon which the jury unanimously returned a verdict of guilty.
Rule 3A:18 Death Penalty.
The trial of capital cases shall proceed in accordance with the provisions of Article 4.1 of Chapter 15 of Title 19.2 and, except to the extent conflicting therewith, the provisions of this Part Three A shall be applicable thereto.
Except for good cause shown, the separate proceeding provided for in Section 19.2-264.3 C shall commence as if it were a continuation of the original trial and continue from day to day until concluded.
Rule 3A:19 Appeals.
(a) Appeal From Conviction in a Circuit Court. See Part Five of these rule.
(b) Appeal From Conviction in a Juvenile and Domestic Relations District Court. The accused or his counsel shall advise the judge or clerk of the juvenile and domestic relations district court, within 10 days after conviction, of his intention to appeal. The appeal shall be noted on the warrant or summons and, if the accused does not withdraw his appeal before the expiration of the 10-day period, the papers shall be filed with the circuit court at the end of such period. Paying a fine or beginning to serve a sentence does not impair the right to appeal.
Rule 3A:20 Time.
(a) Extension. When under this Part Three A an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period extended if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period, permit the act to be done if the failure to act was the result of excusable neglect; but the court may not extend the time for taking any action under rule 3A:15 and 19; except to the extent and under the conditions stated in those rule.
(b) Unaffected by Expiration of Term. The period of time specified in this Part Three A for taking any action is not affected or limited by the expiration of a term of court.
Rule 3A:21 Service and Filing of Papers.
(a) Copies of Written Motions to Be Furnished. All written motions and notices not required to be served shall be served otherwise on each counsel of record by delivering or mailing a copy to him on or before the day of filing. At the foot of such motions and notices shall be appended either acceptance of service or a certificate of counsel that copies were served as this Rule requires, showing the date of delivery or mailing.
(b) Filing. Papers required to be served shall be filed with the clerk.
Rule 3A:22 Forms.
Forms 1 through 9 in the Appendix of Forms are illustrative and not mandatory; however, Form 10 requires substantial compliance.
Rule 3A:23 Effective Date.
The rule set forth in this Part Three A shall be effective July 1, 1984. They shall govern all out-of-court criminal proceedings on or after that day, all criminal proceedings brought before courts on or after that day and, except to the extent that in the opinion of the court their application would not be feasible or would work injustice, all criminal proceedings pending before courts on that day.
Rule 3A:f-1 Appendix of Forms.
Rule 3A:f-1.1 Criminal Complaint (Rule 3A:3).
REFER TO THE BOOK FOR THE PROPER TABLE
Rule 3A:f-2 Statement of Witness for Arrest Warrant (Rule 3A:3).
Witness: (Name and address) ................................................ .............................................................................. (County) (City) of ........................................................... I, the undersigned witness, after being duly sworn, make oath that I have personal knowledge of the following facts: ................................... .............................................................................. .............................................................................. .............................................................................. .............................................................................. __________________________________________ (Signature of complainant and title, if any) Subscribed and sworn to before me this day. ____________________ _________________________________________________________ (Date and time) (Signature and title)
Rule 3A:f-3 Summons (Rule 3A:4(b)).
REFER TO THE BOOK FOR THE PROPER TABLE
Rule 3A:f-4 Indictments (Rule 3A:6).
Murder
COMMONWEALTH OF VIRGINIA
.................... Court
...................., 19 ...
The Grand Jury charges that:
On or about ..............., 19 .... in the (County) (City) of ..., the
accused ......................................................................
(Name of accused)
did feloniously kill and murder ............................................ *
(Name of victim)
Va. Code §§18.2-31, 18.2-32, 19.2-221.
A True Bill.
..............................................................................
(Foreman)
* Language charging other offenses follows.
Attempted Grand Larceny
On or about ..............., 19 .... in the (County) (City) of ..., the
accused ......................................................................
(Name of accused)
attempted to steal property, namely ..........................................
(Describe property)
having a value of ($5 or more from the person of . . . . . . . . ...)
(Name of victim)
($200 or more belonging to ............
(Name of victim)
Va. Code §§ 18.2-95 and 18.2-26.
Burglary (Common Law)
On or about ..............., 19 .... in the (County) (City) of ..., the
accused ......................................................................
(Name of accused)
did break and enter in the nighttime the dwelling house of ...................
(Name of victim)
with intent to commit a (felony) (larceny) therein.
Va. Code §18.2-89.
Statutory (Burglary, Murder, Rape, Robbery, Va. Code § 18.2-90)
On or about ..............., 19 .... in the (County) (City) of ..., the
accused ......................................................................
(Name of accused)
did (enter in the nighttime) (break and enter in the daytime) ................
(Place described in Va. Code § 18.2-90)
..............., with intent to commit (murder) (rape) (robbery).
Va. Code §18.2-90.
Statutory Burglary, Va. Code §18.2-91
On or about ..............., 19 .... in the (County) (City) of ..., the
accused ......................................................................
(Name of accused)
did (enter in the nighttime) (break and enter in the daytime) ................
(Place described in Va. Code § 18.2-90)
........, with intent to commit (larceny) ( ...)
(Describe felony other than murder, rape or robbery).
Va. Code §18.2-91.
Driving While Intoxicated
On or about ..............., 19 .... in the (County) (City) of ..., the
accused ......................................................................
(Name of accused)
did unlawfully operate a motor vehicle while under the influence of alcohol,
narcotic drug, or other self-administered intoxicant or drug of whatever
nature.
Va. Code §18.2-266.
Forgery-Check
On or about ..............., 19 .... in the (County) (City) of ..., the
accused ......................................................................
(Name of accused)
forged with the intent to defraud a check of the following words and figures:
............... ................................................... , 19 ....
(Bank) (Date)
Pay to the order of .................. $..................................
.................... Dollars
(Endorsed ............
Va. Code §18.2-172.
Malicious or Unlawful Wounding
On or about ..............., 19 .... in the (County) (City) of ..., the
accused ......................................................................
(Name of accused)
(maliciously) caused bodily injury to ......................... with intent to
(Name of victim)
maim, disfigure, disable or kill.
Va. Code §18.2-51.
Rape
On or about ..............., 19 .... in the (County) (City) of ..., the
accused ......................................................................
(Name of accused)
did rape .....................................................................
(Name of victim)
Va. Code §18.2-61.
Rape (Statutory, of Female of Age 13 or 14)
On or about ..............., 19 .... in the (County) (City) of ..., the
accused ......................................................................
(Name of accused)
had sexual intercourse with . . . . . . . ....,
(Name of victim)
age .................. . . . . . .
(Age of victim at time of offense)
Va. Code §18.2-63.
Robbery
On or about ..............., 19 .... in the (County) (City) of ..., the
accused ......................................................................
(Name of accused)
did rob ............ of
(Name of victim)
..............................................................................
(Describe property)
Va. Code §18.2-58.
Uttering-Check
On or about ..........., 19 .... in the (County) (City) (Town) of ..., the
accused ......................................................................
(Name of accused)
uttered with the intent to defraud a forged check of the following words and
figures:
............... ................................................... , 19 ....
(Bank) (Date)
Pay to the order of .................. $.................................
.................... Dollars
(Endorsed ............
Va. Code §18.2-172.
Rule 3A:f-5 Capias (Rule 3A:7).
....................... Court
Accused: (Name, description, address/location) .............................
..............................................................................
TO: ......................................... or any other authorized officer
(Designation of officer)
You are hereby commanded in the name of the Commonwealth to forthwith arrest
the accused and to bring him (her) before this Court to answer a charge that
he (she) committed an offense in the (County) (City) of ..., on
or about ............, 19 ....., namely ....................................
(Describe offense)
..............................................................................
.................................. as charged in an (indictment) (presentment)
(information) dated .........., 19 ....
............ ................................................................
(Date) (Clerk)
Rule 3A:f-6 Suggested Questions to Be Put by the Court to an Accused Who Has Pleaded Guilty (Rule 3A:8).
Before accepting your plea of guilty, I will ask you certain questions. If you do not understand any question, please ask me to explain it to you.
1. (a) What is your full name? _____________ (b) What is your date of birth?
__________________ (c) What was the last grade in school which you completed?
_________________________________ (d) What other education have you received?
______________________________________________________________________________
2. Are you the person charged in the (indictment) (presentment) (information)
(warrant) with commission of the offense(s) of _________________
3. Do you fully understand the charge(s) against you? Have you discussed the
charge(s) and (its) (their) elements with your lawyer and do you understand
what the Commonwealth must prove before you may be found guilty of (this)
(these) charge(s)?
______________________________________________________________________________
4. Have you had enough time to discuss with your lawyer any possible defenses
which you may have to (this) (these) charge(s)? _____________________
5. Have you discussed with your lawyer whether you should plead not guilty or
guilty? ___________________________________________________________________
6. After the discussion, did you decide for yourself that you should plead
guilty? ______________________________________________________________________
7. Are you entering the plea of guilty freely and voluntarily? ______________
8. Are you entering the plea of guilty because you are, in fact, guilty of
the crime(s) charged? ________________________ [If the defendant answers 'No,'
(a) Have the Commonwealth summarize the evidence on the record.
(b) Ask the defendant, 'Are you pleading guilty because this is the
Commonwealth's evidence, and you do not wish to take the risk that you will be
found guilty beyond a reasonable doubt?'
(c) If the defendant answers 'Yes,' the court may, but need not, accept
the plea; if the court accepts the plea, the court should note that there is
substantial evidence against the defendant. Otherwise the court should not
accept the plea. (See North Carolina v. Alford, 400 U.S. 25 (1970).]
9. Do you understand that, by pleading guilty, you are NOT entitled to a
trial by jury? _______________________________________________________________
10. Do you understand that, by pleading guilty, you waive your right not to
incriminate yourself? ________________________________________________________
11. Do you understand that, by pleading guilty, you waive your right to
confront and cross-examine your accusers? ____________________________________
12. Do you understand that, by pleading guilty, you waive your right to
defend yourself? _____________________________________________________________
13. [If the accused is in prison, on parole, or probation,] Do you understand
that conviction may (affect your right to parole) (cause revocation of your
parole/probation?)
14. [If the crime involves possession~distribution of drugs,] Have you
discussed with your lawyer whether the defense of accommodation may apply in
this case?
15. [If the accused may be sentenced under the habitual offender statute,]
Have you discussed with your lawyer the possibility that there may be
mitigating circumstances that permit this court not to impose the mandatory
sentence?
16. Has anyone connected with your arrest and prosecution, such as the police
or the Commonwealth's attorney, or any other person, in any manner threatened
you or forced you to enter this plea of guilty? Have they made any promises
concerning your plea of guilty?
17. Do you understand that the maximum punishment for this crime is ________
years imprisonment and $________ fine plus all court costs? (If a guilty plea
involves more than one offense, substitute the following: Do you understand
that if you are sentenced consecutively, the maximum punishment for these
crimes is ________ fine and $________ plus all court costs? [If the crime has
a mandatory punishment, also question accused on his understanding of the
mandatory punishment.]
18. Are you entirely satisfied with the service (of the lawyer who was
appointed to represent you) (of the lawyer representing you) in this matter? _
19. Do you understand that, by pleading guilty, you may waive any right to
appeal the decision of this court? [The judge may, but need not, inform the
defendant that a guilty plea does not waive the right to appeal lack of
jurisdiction or imposition of an impermissible sentence.]
20. [If a written guilty plea form is used,] (a) Have you read the guilty
plea form? ______________________ (b) Do you understand the guilty plea form?
________________________ (c) Are the statements in the guilty plea form true?
______________________________________________________________________________
21. Have you entered into a plea agreement with the Commonwealth's attorney
in this case? If the answer is in the affirmative, read or otherwise put the
plea agreement into the record, then ask the following: Does it contain the
full and complete agreement entered into among you, your lawyer, and the
Commonwealth's attorney? Complete either (a) or (b), whichever is appropriate:
(a) [To be asked if the Commonwealth's attorney has agreed that a particular
sentence is appropriate.] Do you understand that:
(1) The court may accept the agreement, reject the agreement, or may
defer any decision to either accept or reject until there has been an
opportunity to consider a presentence report? ________________________________
(2) If the court accepts the agreement, the court will include in its
judgment and sentence the sentence provided for in the agreement? ____________
(3) If the court rejects the agreement, you will not be bound by the
agreement and you will be given an opportunity to withdraw your plea of
guilty, and if you do, your trial may be conducted by another judge of this
court? _______________________________________________________________________
(4) If you still plead guilty after the court rejects the plea
agreement, the sentence in the case may be more severe than the disposition
contained in the plea agreement? _____________________________________________
(b) [To be used if the Commonwealth's attorney merely recommends, or
agrees not to oppose a request for, a specific sentence.] Do you understand
that this agreement only provides for the Commonwealth's attorney (to make a
recommendation) (to agree not to oppose a request for) a particular sentence,
that this recommendation or request is not binding on the court, and if the
court does not accept the recommendation or does not go along with the
request, you have no right to withdraw your plea of guilty unless the
Commonwealth fails to perform its part of the agreement? Do you also
understand that the sentence the court imposes may be more severe than the
sentence (recommended) (requested)?
22. [If the defendant was a juvenile at the time of the offense,] Do you
understand that if you were tried for this offense and found guilty, the court
and not the jury would set the sentence? _______________________________
23. Do you understand all of these questions? _______________________________
24. Do you have any questions you wish to ask the court? ___________________
Rule 3A:f-7 Suggested Questions to Be Put by the Court to an Accused Who Has Pleaded Not Guilty (Rule 3A:8).
Before accepting your plea of not guilty, I will ask you certain questions. If you do not understand any question, please ask me to explain it to you.
1. What is your full name and what is your age? ______________________________ 2. Are you the person charged in the (indictment) (information) (warrant) with the commission of the offense(s)? _______________________________________ 3. Do you fully understand the charge(s) against you? ________________________ 4. Have you discussed the charge(s) with your lawyer? ________________________ 5. Have you had enough time to discuss with your lawyer any possible defense you may have to (this) (these) charge(s)? ____________________________________ 6. Have you given your lawyer the names of witnesses, and if so, are they present? _____________________________________________________________________ 7. Are you entirely satisfied with the services of your lawyer? ______________ 8. Are you entering this plea of not guilty freely and voluntarily? __________ 9. Are you ready for trial today? ____________________________________________ 10. Do you understand that you are entitled to a trial by jury, but that you can consent to trial by the judge without a jury? Have you discussed with your lawyer the advisability of trial by a jury or by the judge without a jury? ___________ Do you wish to be tried by a jury or by the judge without a jury? ______________________________________________________________________________ 11. Do you understand all of the questions I have asked you? ________________ These questions were asked of the defendant in open court in the absence of a jury on ____________, 19____ ____________________________________________ Signature of defendant ____________________________________________ Signature of attorney representing defendant
Rule 3A:f-8 Subpoena (Rule 3A:12(a)).
.................... Court
..............................................................................
(Address of court)
TO: ......................................... or any other authorized officer
(Designation of officer)
You are commanded to summon .................................................
(Name and address)
TO the person summoned:
You are commanded to appear in this Court on ............., 19 .... at
......... a.m., to testify in the case of Commonwealth v. ...................
This subpoena is issued on application of the (Commonwealth) (City) (County)
(Town) (Defendant) (Juvenile) in the case of the Commonwealth v. .............
.............. ..............................................................
(Date) (Judge) (Clerk) (Commonwealth's Attorney)
Rule 3A:f-9 Subpoena Duces Tecum (Rule 3A:12(b)).
.................... Court
..............................................................................
(Address of court)
TO: ......................................... or any other authorized officer
Designation of officer)
You are commanded to summon .................................................
(Name and address)
TO the person summoned:
[ ] You are commanded to appear in (this Court) (the Clerk's office of this
Court) on ............., 19 .... at ............ a.m./p.m., and to bring
with you the following:
..............................................................................
..............................................................................
..............................................................................
..............................................................................
OR
[ ] You are commanded to deliver to the Clerk's office of this Court on or
before ............, 19 .... at .......... a.m./p.m. the following:
..............................................................................
..............................................................................
..............................................................................
..............................................................................
This subpoena is issued on application of the (Commonwealth) (City) (County)
(Town) (Defendant) (Juvenile) in the case of the Commonwealth v.
..............................................................................
.............. ..............................................................
(Date) (Judge) (Clerk)
Rule 3A:f-10 Contents of Sentencing Orders.
(Pursuant to the provisions of Code §19.2-307, all orders wherein an accused is sentenced for a criminal conviction shall conform substantially to the following form. In cases where no prior criminal conviction order has been entered of record, state the defendant's plea, the verdict or findings, the adjudication, whether or not the case was tried by a jury, and, if not, whether the consent of the accused was concurred in by the court and the attorney for the Commonwealth.)
SENTENCING ORDER
VIRGINIA: IN THE CIRCUIT COURT OF ____________________________________________
FEDERAL INFORMATION PROCESSING STANDARDS CODE:
______]
Hearing Date: ________________________
Judge: ________________________________]
COMMONWEALTH OF VIRGINIA
v.
______________________________, DEFENDANT
This case came before the Court for sentencing of the defendant, who appeared
in person with his attorney, ________________________. The Commonwealth was
represented by ________________________..
On ________________________ the defendant was found guilty of the following
offenses:
CASE OFFENSE DESCRIPTION AND OFFENSE VA. CODE
NUMBER INDICATOR (F/M) DATE SECTION
__________ __________________________ __________ _______ ___________
__________ __________________________ __________ _______ ___________
__________ __________________________ __________ _______ ___________
__________ __________________________ __________ _______ ___________
The presentence report was considered and is ordered filed as a part of the
record in this case in accordance with the provisions of Code §19.2-299.
Pursuant to the provisions of Code §19.2-298.01, the Court has considered and
reviewed the applicable discretionary sentencing guidelines and the
guidelines worksheets. The sentencing guidelines worksheets and the written
explanation of any departure from the guidelines are ordered filed as a part
of the record in this case.
Before pronouncing the sentence, the Court inquired if the defendant desired
to make a statement and if the defendant desired to advance any reason why
judgment should not be pronounced.
The Court SENTENCES the defendant to:
Incarceration with the Virginia Department of Corrections for the term of:
______________ for ______________, and ______________ for ______________. The
total sentence imposed is ______________.]
A fine of $________ for ______________.]
This sentence shall run ______________ with any other sentences imposed.
The Court SUSPENDS ____________ of the ____________ sentence and ____________
of the ____________ sentence, for a period of ____________, for a total
suspension of ____________, upon the following condition(s):
Good behavior. The defendant shall be of good behavior for ________ from the
defendant's release from confinement.
Community-based Corrections System Program. The defendant shall successfully
complete the ______________ program.
Supervised probation. The defendant is placed on probation to commence
______________ under the supervision of a Probation Officer for ______________
or unless sooner released by the court or by the Probation Officer. The
defendant shall comply with all the rule and requirements set by the
Probation Officer. Probation shall include substance abuse counseling and/r
testing as prescribed by the Probation Officer.
Post-release supervision. The defendant shall be subject to a period of
post-release supervision of ______________.]
Costs. The defendant shall pay costs of ______________.]
Restitution. The defendant shall make restitution as follows: ________ to
______________.]
Credit for time served. The defendant shall be given credit for time spent in
confinement while awaiting trial pursuant to Code §53.1-187.
________________________ ENTER: ___________________________
DATE JUDGE
DEFENDANT IDENTIFICATION:
Alias: ________________________
SSN: __________________________________________ DOB: ____________ Sex: ____]
SENTENCING SUMMARY:
TOTAL SENTENCE IMPOSED: ______________
TOTAL SENTENCE SUSPENDED: ______________
Rule 3B:1 Purpose.
These rule are promulgated by the Supreme Court of Virginia pursuant to §16.1-69.40:1 of the Code of Virginia to carry out the provisions of Chapter 585 of the Acts of Assembly of 1977 and Chapter 605 of the Acts of Assembly of 1978.
PART FOUR
DISCOVERY
Rule 4:0 Application of Part Four.
(a) The rule in this Part Four shall apply in civil cases in both actions at law and suits in equity in the circuit courts. They also shall apply to proceedings for separate maintenance, divorce or annulment of marriage, for the exercise of the right of eminent domain, and for writs of habeas corpus or in the nature of coram nobis as provided in Rule 4:1(b)(5). Whenever in this Part Four the word "action" appears it shall include a suit in equity.
(b) No provision of any of the rule in this Part Four shall affect the practice of taking evidence at trial in any action; but such practice, including that of generally taking evidence ore tenus in actions at law and of generally taking evidence by deposition in equity suits, shall continue unaffected hereby.
Rule 4:1 General Provisions Governing Discovery.
(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.
(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rule, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Subject to the provisions of Rule 4:8 (g), the frequency or extent of use of the discovery methods set forth in subdivision (a) shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice to counsel of record or pursuant to a motion under subdivision (c).
(2) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person (which includes any individual, corporation, partnership or other association) carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.
(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this Rule , a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this Rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 4:12(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
(4) Trial Preparation: Experts; Costs - Special Provisions for Eminent Domain Proceedings. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this Rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this Rule , concerning fees and expenses as the court may deem appropriate.
(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent and his expenses incurred in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this Rule ; and (ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this Rule the court may require, and with respect to discovery obtained under subdivision (b)(4)(B) of this Rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
(D) Notwithstanding the provisions of subdivision (b)(4)(C) of this Rule , the condemnor in eminent domain proceedings, when it initiates discovery, shall pay all costs thereof, including without limitation the cost and expense of those experts discoverable under subdivision (b) of this Rule . The condemnor shall be deemed to have initiated discovery if it uses, or gives notice of the use of, any discovery method before the condemnee does so, even though the condemnee subsequently engages in discovery.
(5) Limitations on Discovery in Certain Proceedings. In any proceeding (1) for separate maintenance, divorce, or annulment of marriage, (2) for the exercise of the right of eminent domain, or (3) for a writ of habeas corpus or in the nature of coram nobis; (a) the scope of discovery shall extend only to matters which are relevant to the issues in the proceeding and which are not privileged; and (b) no discovery shall be allowed in any proceeding for a writ of habeas corpus or in the nature of coram nobis without prior leave of the court, which may deny or limit discovery in any such proceeding. In any proceeding for divorce or annulment of marriage, a notice to take depositions must be served in the Commonwealth by an officer authorized to serve the same, except that, in cases where such suits have been commenced and an appearance has been made on behalf of the defendant by counsel, notices to take depositions may be served in accordance with Rule 1:12.
(6) (Effective July 1, 1999) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rule by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county or city where the deposition is to be taken, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 4:12(a)(4) apply to the award of expenses incurred in relation to the motion.
(d) Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.
(e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.
(f) Service Under This Part. Except for the service of the notice required under Rule 4:2(a)(2), any notice or document required or permitted to be served under this Part Four shall be served as provided in Rule 1:12 except that any notice or document permitted to be served with the initial pleading shall be served (or accepted) in the same manner as such pleading.
(g) Signing of Discovery Requests, Responses, and Objections. Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection, and state the party's address. The signature of the attorney or party constitutes a certification that the signer has read the request, response, or objection, and that to the best of the signer's knowledge, information, and belief formed after a reasonable inquiry it is: (1) consistent with these rule and warranted by existing law or a good faith argument for extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy and the importance of the issues at stake in the litigation. If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed.
If a certification is made in violation of the Rule , the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee.
Rule 4:2 Depositions Before Action or Pending Appeal.
(1) Petition. A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of this Commonwealth may file a verified petition in the circuit court in the county or city of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: (A) that the petitioner expects to be a party to an action cognizable in a court of this Commonwealth but is presently unable to bring it or cause it to be brought; (B) the subject matter of the expected action and his interest therein; (C) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (D) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and (E) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.
(2) Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least 21 days before the date of hearing the notice shall be served either within the Commonwealth in the manner provided for service of a bill of complaint or motion for judgment or without the Commonwealth in the manner provided by Code Section 8.01-320; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not so served, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a person under a disability, a guardian ad litem shall be appointed to attend on his behalf.
(3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with these rule. The attendance of witnesses may be compelled by subpoena, and the court may make orders of the character provided for by rule 4:9 and 4:10. For the purpose of applying these rule to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.
(4) Cost. The cost of such depositions shall be paid by the petitioner, except that the other parties in interest who produce witnesses on their behalf or who make use of witnesses produced by others shall pay their proportionate part of the cost of the transcribed testimony and evidence taken or given on behalf of each of such parties.
(5) Filing. The depositions shall be certified as prescribed in Rule 4:5 and then returned to and filed by the clerk of the court which ordered its taking.
(6) Use of Deposition. If a deposition to perpetuate testimony is taken under these rule or if, although not so taken, it would be admissible in evidence in the courts of the state in which it is taken, it may be used in any action involving the same subject matter subsequently brought in a court of this Commonwealth in accordance with the provisions of Rule 4:1.
(b) Pending Appeal. If an appeal has been taken from a judgment of a court of record or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in that court. In such case the party who desires to perpetuate the testimony may make a motion in the court in which the judgment was rendered for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each; and (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make orders of the character provided for by rule 4:9 and 4:10, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rule for depositions taken in pending actions.
(c) Perpetuation of Testimony. This Rule provides the exclusive procedure to perpetuate testimony.
Rule 4:3 Persons Before Whom Depositions May Be Taken.
(a) Within this Commonwealth. Within this Commonwealth depositions may be taken before any person authorized by law to administer oaths, and if certified by his hand may be received without proof of the signature to such certificate.
(b) Within the United States. In any other State of the United States or within any territory or insular possession subject to the dominion of the United States, depositions may be taken before any officer authorized to take depositions in the jurisdiction wherein the witness may be, or before any commissioner appointed by the Governor of this Commonwealth.
(c) No Commission Necessary. No commission by the Governor of this Commonwealth shall be necessary to take a deposition whether within or without this Commonwealth.
(d) In Foreign Countries. In a foreign state or country depositions shall be taken (1) before any American minister plenipotentiary, charge d'affaires, secretary of embassy or legation, consul general, consul, vice-consul, or commercial agent of the United States in a foreign country, or any other representative of the United States therein, including commissioned officers of the armed services of the United States, or (2) before the mayor, or other magistrate of any city, town or corporation in such country, or any notary therein.
(e) Certificate When Deposition Taken Outside Commonwealth. Any person before whom a deposition is taken outside this Commonwealth shall certify the same with his official seal annexed; and, if he have none, the genuineness of his signature shall be authenticated by some officer of the same state or country, under his official seal, except that no seal shall be required of a commissioned officer of the armed services of the United States, but his signature shall be authenticated by the commanding officer of the military installation or ship to which he is assigned.
Rule 4:4 Stipulations Regarding Discovery.
Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions and (2) modify the procedures provided by these rule for other methods of discovery. Such stipulations shall be filed with the deposition.
Rule 4:5 Depositions Upon Oral Examination.
(a) When Depositions May Be Taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition before the expiration of the period within which a defendant may file a responsive pleading under Rule 2:7 or 3:5, except that leave is not required (1) if a defendant has served a notice of taking deposition, or (2) if special notice is given as provided in subdivision (b)(2) of this Rule . The attendance of witnesses may be compelled by subpoena. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
(a1) Taking of Depositions. Depositions shall be taken in the county or city in which suit is pending, in an adjacent county or city or in the county or city of the Commonwealth of Virginia where a nonparty witness resides, is employed, or has his principal place of business, except that depositions may be taken at a place upon which the parties agree or at a place that the court in such suit may, for good cause, designate. If a nonparty witness is not a resident of the Commonwealth, his deposition may be taken in the locality where he resides or is employed or at any other location agreed upon by the parties. Additionally, the restrictions as to parties within the Commonwealth set forth in this Rule shall not apply where no responsive pleading has been filed or an appearance otherwise made.
(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.
(2) Leave of court is not required for the taking of a deposition by plaintiff if the notice (A) states that the person to be examined is about to go out of the Commonwealth, or is about to go out of the United States, or is bound on a voyage to sea, and will be unavailable for examination unless his deposition is taken before expiration of the period for filing a responsive pleading under Rule 2:7 or 3:5, and (B) sets forth facts to support the statement. The plaintiff's attorney shall sign the notice, and his signature constitutes a certification by him that to the best of his knowledge, information, and belief the statement and supporting facts are true.
If a party shows that when he was served with notice under this subdivision (b)(2) he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the deposition may not be used against him.
(3) The court may for cause shown enlarge or shorten the time for taking the deposition.
(4) [Deleted.]
(5) The notice to a party deponent may be accompanied by a request made in compliance with Rule 4:9 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 4:9 shall apply to the request.
(6) A party may in his notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rule.
(7) The parties may stipulate in writing or the court may on motion order that a deposition be taken by telephone. A deposition taken by telephone shall be taken before an appropriate officer in the locality where the deponent is present to answer questions propounded to him.
(c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. If requested by one of the parties, the testimony shall be transcribed.
All objections made at time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and he shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.
(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the county or city where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 4:1(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 4:12(a)(4) apply to the award of expenses incurred in relation to the motion.
(e) Submission to Witness; Changes; Signing. When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within 21 days of its submission to him, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under Rule 4:7(d)(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
(f) Certification and Filing by Officer; Exhibits; Copies; Notice of Filing.
(1) The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. In a divorce or annulment case, he shall then promptly file the deposition in the office of the clerk, notifying all other parties of such action. In all other cases, he shall then lodge it with the attorney for the party who initiated the taking of the deposition, notifying the clerk and all parties of such action. Depositions taken pursuant to this Rule or Rule 4:6 (except depositions taken in divorce and annulment cases) shall not be filed with the clerk until the court so directs, either on its own initiative or upon the request of any party prior to or during the trial.
Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition, and may be inspected and copied by any party, except that (A) the person producing the materials may substitute copies to be marked for identification, if he affords to all parties fair opportunity to verify the copies by comparison with the originals, and (B) if the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the same manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case.
(2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.
(3) The party taking the deposition shall give prompt notice of its filing to all other parties.
(1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney's fees.
(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney's fees.
Rule 4:6 Depositions Upon Written Questions.
(a) Serving Questions; Notice. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
A party desiring to take the deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Rule 4:5(b)(6).
Within 21 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time.
(b) Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Rule 4:5(c), (e), and (f), to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by him.
(c) Notice of Filing. When the deposition is filed, the party taking it shall promptly give notice thereof to all other parties.
Limitation on Depositions.
No party shall take the deposition of more than five witnesses for any purpose without leave of court for good cause shown.
Use of Depositions in Court Proceedings.
(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rule of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(1) Any deposition taken in a suit in equity may be used for any purpose; provided, however, that such a deposition may be used on an issue out of chancery or a hearing ore tenus only as provided by subdivision (a)(4) of this Rule .
(2) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
(3) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 4:5(b)(6) or 4:6(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.
(4) The deposition of a witness, whether or not a party, may be used by any party for any purpose in any action at law, issue out of chancery or hearing ore tenus in equity if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this Commonwealth, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) that the witness is a judge, or is a superintendent of a hospital for the insane more than 30 miles from the place of trial, or is a physician, surgeon, dentist, chiropractor, or registered nurse who, in the regular course of his profession, treated or examined any party to the proceeding, or is in any public office or service the duties of which prevent his attending the court provided, however, that if the deponent is subject to the jurisdiction of the court, the court may, upon a showing of good cause or sua sponte, order him to attend and to testify ore tenus; or (F) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
(5) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.
(6) No deposition shall be read in any action against a person under a disability unless it be taken in the presence of the guardian ad litem appointed or attorney serving pursuant to §8.01-9, or upon questions agreed on by the guardian or attorney before the taking.
(7) In any action, the fact that a deposition has not been offered in evidence prior to an interlocutory decree or order shall not prevent its thereafter being so offered except as to matters Rule d upon in such interlocutory decree or order; provided, however, that such deposition may be read as to matters Rule d upon in such an interlocutory decree or order if the principles applicable to after-discovered evidence would permit its introduction.
Substitution of parties does not affect the right to use depositions previously taken; and when there are pending in the same court several actions or suits between the same parties, depending upon the same facts, or involving the same matter of controversy, in whole or in part, a deposition taken in one of such actions or suits, upon notice to the same party or parties, may be read in all, so far as it is applicable and relevant to the issue; and, when an action in any court of the United States or of this or any other state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the one action may be used in the other as if originally taken therefor.
(b) Objections to Admissibility. Subject to the provisions of subdivision (d)(3) of this Rule , objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
(c) Effect of Taking or Using Depositions. A party does not make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition under subdivision (a)(3) of this Rule . At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.
(1) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.
(2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
(A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.
(C) Objections to the form of written questions submitted under Rule 4:6 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within 5 days after service of the last questions authorized.
(4) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed or otherwise dealt with by the officer under rule 4:5 and 4:6 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.
(e) Limitation on Use of Depositions. No motion for summary judgment in any action at law or to strike the evidence shall be sustained when based in whole or in part upon any depositions under Rule 4:5, unless such depositions are received in evidence under Rule 4:7(a)(4) or all parties to the suit or action shall agree that such deposition may be so used.
(f) Record. Depositions shall become a part of the record only to the extent that they are offered in evidence.
Rule 4:7A Audio-Visual Depositions.
(a) When Depositions May Be Taken by Audio-Visual Means. Any depositions permitted under these rule may be taken by audio-visual means as authorized by and when taken in compliance with law.
(b) Reserved for future use.
(c) Editing. No audio-visual deposition shall be edited except pursuant to a stipulation of the parties or pursuant to order of the court and only as and to the extent directed in such order.
(d) Written Transcript. If an appeal is taken in the case, the appellant must cause to be prepared and filed with the clerk a written transcript of that portion of an audio-visual deposition made a part of the record in the trial court to the extent germane to an issue on appeal. The appellee may designate additional portions to be so prepared by the appellant and filed.
(e) Use. An audio-visual deposition may be used only as provided in Rule 4:7.
(f) Submission, etc. The provisions of Rule 4:5(e) shall not apply to an audio-visual deposition. The other provisions of Rule 4:5 shall be applicable to the extent practicable.
Rule 4:8 Interrogatories to Parties.
(a) Availability; Procedures for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the bill of complaint or motion for judgment upon that party.
(b) Form. The party serving the interrogatories shall leave sufficient space between each interrogatory so as to permit the party answering the interrogatories to make a photocopy of the interrogatories and to insert the answers between each interrogatory. The party answering the interrogatories shall use a photocopy to insert answers and shall precede the answer with the word ""Answer.'' In the event the space which is left to fully answer any interrogatory is insufficient, the party answering shall insert the words, ""See supplemental sheet'' and shall proceed to answer the interrogatory fully on a separate sheet or sheets of paper containing the heading ""Supplemental Sheet'' and identify the answers by reference to the number of the interrogatory. The party answering the interrogatories shall prepare a separate sheet containing the necessary oath to the answers, which shall be attached to the answers sent to all parties and shall contain a certificate of service.
(c) Filing. The interrogatories and answers and objections thereto shall not be filed in the office of the clerk unless the court directs their filing on its own initiative or upon the request of any party prior to or during the trial. For the purpose of any consideration of the sufficiency of any answer or any other question concerning the interrogatories, answers or objections, copies of those documents shall be made available to the court by counsel.
(d) Answers. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 21 days after the service of the interrogatories, except that a defendant may serve answers or objections within 28 days after service of the bill of complaint or motion for judgment upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 4:12(a) with respect to any objection to or other failure to answer an interrogatory.
(e) Scope; Use. Interrogatories may relate to any matters which can be inquired into under Rule 4:1(b), and the answers may be used to the extent permitted by the rule of evidence and for the purposes of rule 2:21 and 3:18. Only such interrogatories and the answers thereto as are offered in evidence shall become a part of the record.
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time.
(f) Option to Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. (Effective July 1, 1999) A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.
(g) Limitation on Interrogatories. No party shall serve upon any other party, at any one time or cumulatively, more than thirty written interrogatories, including all parts and sub-parts without leave of court for good cause shown.
Rule 4:9 Production of Documents and Things and Entry on Land for Inspection and Other Purposes; Production at Trial.
(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 4:1(b) and which are in the possession, custody, or control of the party upon whom the request is served; or (2) to produce any such documents to the court in which the proceeding is pending at the time of trial; or (3) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 4:1(b).
(b) Procedure. The request may, without leave of court, except as provided in paragraph (c-1), be served upon the plaintiff after commencement of the action and upon any other party with or after service of the bill of complaint or motion for judgment upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, period and manner of making the inspection and performing the related acts.
The party upon whom the request is served shall serve a written response within 21 days after the service of the request, except that a defendant may serve a response within 28 days after service of the bill of complaint or motion for judgment upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under Rule 4:12(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.
(Effective July 1, 1999) A party who produces documents for inspection either shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.
(c) Production by a Person Not a Party. Upon written request therefore filed with the clerk of the court in which the action or suit is pending by counsel of record for any party or by a party having no counsel in any pending case, with a certificate that a copy thereof has been mailed, dispatched by commercial delivery service, or transmitted by facsimile, delivered to counsel of record and to parties having no counsel, the clerk shall, subject to paragraph (c-1), issue to a person not a party therein a subpoena duces tecum which shall command the person to whom it is directed, or someone acting on his behalf, to produce the documents and tangible things (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form) designated and described in said request, and to permit the party filing such request, or someone acting in his behalf, to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 4:1(b) which are in the possession, custody or control of such person to whom the subpoena is directed, at a time and place and for the period specified in the subpoena; but, the court, upon written motion promptly made by the person so required to produce, or by the party against whom such production is sought, may (1) quash or modify the subpoena if it is unreasonable and oppressive, (2) condition denial of the motion to quash or modify upon the advancement by the party in whose behalf the subpoena is issued of the reasonable cost of producing the documents and tangible things so designated and described or (3) direct that the documents and tangible things subpoenaed be returned only to the office of the clerk of the court through which such documents and tangible things are subpoenaed in which event, upon request of any party in interest, or his attorney, the clerk of such court shall permit the withdrawal of such documents and tangible things by such party or his attorney for such reasonable period of time as will permit his inspection, photographing, or copying thereof.
(c-1) Certain Officials. No request to produce made pursuant to paragraph (b) above shall be served, and no subpoena provided for in paragraph (c) above shall issue, until prior order of the court is obtained when the party upon whom the request is to be served or the person to whom the subpoena is to be directed is the Governor, Lieutenant Governor, or Attorney General of this Commonwealth, or a judge of any court thereof; the President or Vice President of the United States; any member of the President's Cabinet; any Ambassador or Consul; or any Military Officer on active duty holding the rank of Admiral or General.
(d) Proceedings on Failure or Refusal to Comply. If a party fails or refuses to obey an order made under section (b) of this Rule , the court may proceed as provided by Rule 4:12(b)(2).
If a non-party, after being served with a subpoena issued under the provisions of section (c) of this Rule , fails or refuses to comply therewith, he may be proceeded against as for contempt of court as provided in §18.2-456.
(e) Filing. Requests to a party pursuant to Rule 4:9(a) and (b) and responses or objections shall be filed as provided in Rule 4:8(c).
Rule 4:10 Physical and Mental Examination of Persons.
(a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending, upon motion of an adverse party, may order the party to submit to a physical or mental examination by one or more health care providers, as defined in §/n 8.01-581.1, employed by the moving party or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties, shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made, and shall fix the time for filing the report and furnishing the copies.
(b) Residence of Examiners. Examiners named in such an order shall be residents of or have an office in this Commonwealth, unless the court, in the exercise of its sound discretion, shall determine that the ends of justice will best be served by ordering an examination by one who is not a resident of this Commonwealth but who is duly licensed in his or her jurisdiction.
(1) A written report of the examination shall be made by the examiner to the court and filed with the clerk thereof before the trial and a copy furnished to each party. The report shall be detailed, setting out the findings of the examiner, including results of all tests made, diagnosis and conclusions, together with like reports of all earlier examinations of the same condition.
(2) The written report of the examination so filed with the clerk may be read into evidence if offered by the party who submitted to the examination. A party examined who takes the deposition of any examiner who shall have conducted an examination ordered pursuant to this Rule , waives any privilege that might have been asserted in that action or in any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition.
(3) This subdivision applies to examination made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of a health care examiner or the taking of a deposition of such examiner in accordance with the provisions of any other Rule .
Rule 4:11 Requests for Admission.
(a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 4:1(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the bill of complaint or motion for judgment upon that party.
Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 21 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 28 days after service of the bill of complaint or motion for judgment upon him. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of Rule 4:12(c), deny the matter or set forth reasons why he cannot admit or deny it.
The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this Rule , it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The provisions of Rule 4:12(a)(4) apply to the award of expenses incurred in relation to the motion.
(b) Effect of Admission. Any matter admitted under this Rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 4:13 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Any admission made by a party under this Rule is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.
(c) Filing. Requests for admissions and answers or objections shall be served and filed as provided in Rule 4:8.
(d) Part of Record. Only such requests for admissions and the answers thereto as are offered in evidence shall become a part of the record.
Rule 4:12 Failure to Make Discovery; Sanctions.
(a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the court in the county or city where the deposition is to be taken. An application for an order to a deponent who is not a party shall be made to the court in the county or city where the deposition is being taken.
(2) Motion. If a deponent fails to answer a question propounded or submitted under Rule 4:5 or 4:6, or a corporation or other entity fails to make a designation under Rule 4:5(b)(6) or 4:6(a), or a party fails to answer an interrogatory submitted under Rule 4:8, or if a party, in response to a request for inspection submitted under Rule 4:9, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.
If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 4:1(c).
(3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.
(4) Award of Expenses of Motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
(1) Sanctions by Court in County or City Where Deposition Is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the county or city in which the deposition is being taken, the failure may be considered a contempt of that court.
(2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 4:5(b) (6) or 4:6(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this Rule or Rule 4:10, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
(E) Where a party has failed to comply with an order under Rule 4:10(a) requiring him to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that he is unable to produce such person for examination.
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
(c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 4:11, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to Rule 4:11(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.
(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. - If a party or an officer, director, or managing agent of a party or a person designated under Rule 4:5(b) (6) or 4:6(a) to testify on behalf of a party fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 4:8, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 4:9, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this Rule . In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 4:1(c).
Rule 4:13 Pretrial Procedure; Formulating Issues.
The court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:
(1) A determination of the issues;
(2) A plan and schedule of discovery;
(3) Any limitations on the scope and methods of discovery;
(4) The necessity or desirability of amendments to the pleadings;
(5) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(6) The limitation of the number of expert witnesses;
(7) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;
(8) Such other matters as may aid in the disposition of the action.
The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.
Rule 4:14 Disposition of Discovery Material.
Any discovery material not admitted in evidence filed in a clerk's office may be destroyed by the clerk after one year after entry of the final judgment or decree. But if the action or suit is the subject of an appeal, such material shall not be destroyed until the lapse of one year after receipt of the mandate on appeal or the entry of any final judgment or decree thereafter.
PROCEEDINGS IN THE SUPREME COURT
Rule 5:1 A. General.
Rule 5:1.2 Scope, Applicability and General Provisions.
(a) Scope of rule. Part Five governs all proceedings in the Supreme Court of Virginia.
(1) "Appeal," "appellant," and "appellee" include "writ of error," "plaintiff in error," and "defendant in error," respectively.
(2) "Clerk" means clerk of the court or commission from which an appeal is taken unless some other clerk is specified and, unless the context otherwise requires, includes a deputy clerk.
(3) "Clerk of this Court" includes a deputy clerk.
(4) "Counsel" has the definition given in Rule 1:5 and in this Part Five includes a party not represented by counsel.
(5) "Counsel for the appellant" means one of the attorneys representing each appellant represented by an attorney and each appellant not represented by an attorney.
(6) "Counsel for the appellee" means one of the attorneys representing each appellee represented by an attorney and each appellee not represented by an attorney. In an appeal from the State Corporation Commission, "counsel for the appellee" shall also include counsel for the Commission and, unless the Commonwealth is the appellant, the Attorney General.
(7) "Court of Appeals" means the Court of Appeals of Virginia.
(8) "Opposing counsel" means, depending on the context, "counsel for the appellant" or "counsel for the appellee."
(9) "Judge" means judge of the trial court, unless the context otherwise requires, or if he is not available, any judge authorized to act under Rule 5:12.
(10) "Judgment" includes an order or decree from which an appeal is taken.
(11) "File with the clerk" or "files with the clerk" or "filed with the clerk" means deliver to the clerk specified a paper, a copy of which has been mailed or delivered to opposing counsel, and appended to which is either acceptance of service or a certificate showing the date of mailing or delivery. "File in the office of the clerk" or "files in the office of the clerk" or "filed in the office of the clerk" means, on the other hand, deliver a paper to the clerk specified.
(12) "Trial court" means the circuit court from which an appeal is taken.
(13) The "date of entry" of any final judgment or other appealable order or decree shall be the date the judgment, order, or decree is signed by the judge.
Rule 5:2 Sessions.
Sessions of this Court will be held at Richmond and will continue for such length of time as this Court may determine. Orders of this Court or of a justice thereof may be entered whether or not this Court is in session.
Rule 5:3 Convening of Court - When In Banc - When in Division.
(a) This Court will sit in banc or in divisions.
(b) Whenever four or more of the justices are convened, the Court shall be deemed to be sitting in banc and vested with all of the powers of the Court. Whenever three of the justices are convened, the Court shall be deemed to be sitting as a division, and vested with all of the powers of a division of the Court.
(c) If the justices composing any division shall differ as to the judgment to be rendered in any case, or if, within ten days after the decision is rendered by the division, any justice of such division shall file in the office of the clerk of this Court a certificate that, in his opinion, such decision is in conflict with a prior decision of this Court or of one of the divisions thereof, or if this Court shall so determine, the case shall be reheard and decided by this Court sitting in banc.
Rule 5:4 Motions and Orders.
(a) Motions. All motions, except motions for the qualification of attorneys at law to practice in this Court, shall be in writing and filed with the clerk of this Court. Opposing counsel shall have 10 days after such motion is filed to file with such clerk a reply to such motion. All motions or replies shall be in quadruplicate. Carbon copies are acceptable. No motion shall be argued orally except by leave of court.
(b) Orders. Promptly after this Court has entered an order, the clerk of this Court shall mail or deliver a copy of the order to all counsel.
Rule 5:5 Extension of Time; Filing by Mail.
(a) The times prescribed for filing the notice of appeal (rule 5:9(a), 5:14(a) and 5:21(c)), the transcript or written statement (Rule 5:11), a petition for appeal (rule 5:17(a) and 5:21(g)) and a petition for rehearing (rule 5:20 and 5:39), are mandatory. The time period for filing the notice of appeal is not extended by the filing of a motion for a new trial, a petition for rehearing, or a like pleading unless the final judgment is modified, vacated, or suspended by the trial court pursuant to Rule 1:1 or a petition for rehearing is filed in the Court of Appeals. In any such case the time for filing shall be computed from the date of final judgment entered following such modification, vacation, or suspension, or from the date the Court of Appeals refuses a petition for rehearing or enters final judgment following the granting of such a petition.
(b) Any document required to be filed with the clerk of this Court, or filed in the office of the clerk of this Court, shall be deemed to be timely filed if it is mailed postage prepaid to the clerk of this Court by registered or certified mail and if the official receipt therefor be exhibited upon demand of the clerk or any party and it shows mailing within the prescribed time limits. This Rule does not apply to documents to be filed in the office of the clerk of the trial court or clerk of the Virginia Workers' Compensation Commission or clerk of the State Corporation Commission.
Rule 5:6 Forms of Briefs and Other Papers.
(a) Briefs, appendices, motions, petitions, and other papers may be printed, typewritten, or prepared by a mechanical duplication process. All such papers shall be produced on pages 8-1/2 x 11 inches; printed matter shall occupy approximately 5 by 8 inches of a page, and typewritten matter shall occupy approximately 6 by 9 inches. All printed matter must be in at least 12 point type. Typed papers shall not be reduced and must be double spaced except for quotations and footnotes. Carbon copies are prohibited except where specifically authorized by these rule and otherwise by permission of a justice of this Court.
(b) All briefs and appendices shall be bound on the left margin in such a manner as to produce a flat, smooth binding. Spiral binding, acco fasteners, and the like are not acceptable. The caption (with the name of the appellant stated first) and the record number of the case shall be stated on the front cover of all briefs and appendices and, in addition, the names and addresses of counsel submitting the brief shall be placed on the front cover of all briefs.
(c) No appeal shall be dismissed for failure to comply with the provisions of this Rule 5:6; the clerk of this Court may, however, require that a document be redone in compliance with this Rule .
Rule 5:7 B. Original Jurisdiction.
Rule 5:7.1 Original Jurisdiction.
(a) An application to this Court for a writ of mandamus, prohibition, or habeas corpus under its original jurisdiction shall be by petition filed in the office of the clerk of this Court.
(b) Except as hereinafter provided in (c) with respect to cases brought by prisoners pro se, each such petition shall be verified, shall state whether, in the opinion of the petitioner, the taking of evidence is necessary for the proper disposition of the petition, and shall be accompanied by a return of service executed by the appropriate officer evidencing service of a copy thereof on the respondent or by an acceptance of service signed by the respondent. In the case of a petition for a writ of habeas corpus directed to a public official, service shall also be made on or accepted by the Attorney General or an assistant Attorney General.
Within fourteen days after service of the petition, the respondent shall file with the clerk of this Court a responsive pleading. In one responsive pleading, the respondent may move to dismiss on any appropriate ground, including the failure to state facts upon which relief should be granted, and, in the alternative, may set forth grounds of defense as in an action at law. The grounds of defense shall state whether, in the opinion of the respondent, the taking of evidence is necessary for the proper disposition of the petition.
(c) In cases brought by prisoners pro se, a copy of the petition shall be forwarded to the respondent by first class mail, and the application shall contain a certificate at the end stating as follows:
I hereby certify that on the ____ day of ______________, 19____, I mailed a copy of the foregoing application to the respondent(s), ________________________________________________________, by first class mail. ______________________________________________________________________________ Petitioner
No responsive pleading shall be required except as ordered by this Court.
(d) Each petition and responsive pleading should be accompanied by a memorandum of law citing the relevant authorities.
(e) Further proceedings shall be taken in accordance with the orders of this Court or of a justice thereof to whom this Court may delegate authority to determine all procedural matters. If this Court or the designated justice determines that evidence is desirable, depositions shall be taken according to a schedule agreed upon by counsel and filed in the office of the clerk of this Court or, in the absence of agreement, according to a schedule determined by this Court or the designated justice.
(f) This Court may act without awaiting the responsive pleading or shorten the period for its filing.
(g) Ten copies conforming to Rule 5:6 of the petition, responsive pleadings, memoranda of law and motions shall be filed in the office of the clerk of this Court.
(h) Except by permission of a justice of this Court, no petition for a writ of habeas corpus or a response thereto shall exceed 50 typed or 36 printed pages. The page limit does not include appendices. (i) Any petition for a writ of mandamus or a writ of prohibition against a judge of the Court of Appeals or of any circuit court or district court shall not bear the name of the judge but shall be entitled simply, In re _____________, Petitioner. Where it is determined by the Attorney General, with the concurrence of the judge, that under the circumstances it is impracticable or unnecessary for the Attorney General to represent the judge, the judge shall be represented pro forma by counsel for the party opposing the relief, who shall appear in the name of the party and not that of the judge.
Rule 5:7A Petitions for Writs of Habeas Corpus in Cases in Which the Sentence of Death Has Been Imposed.
In cases in which the sentence of death has been imposed:
(a) Petition for the Writ. A petition for a writ of habeas corpus shall be filed in the office of the clerk of this Court within 60 days after the earliest of: (i) the denial by the Supreme Court of the United States of a petition for a writ of certiorari to the judgment of this Court on direct appeal, (ii) an order of the Supreme Court of the United States affirming imposition of the sentence of death in a case in which that Court granted a writ of certiorari to review the judgment of this Court on direct appeal, or (iii) the expiration of the period for filing a petition for a writ of certiorari in the Supreme Court of the United States without such a petition being filed.
(b) Contents of Petition for Writ. Each petition for a writ of habeas corpus shall be verified and shall include an enumerated list of the grounds asserted for relief together with all supporting facts upon which the petitioner relies. The petition shall contain citation to the relevant legal authorities and an enumeration of all previous petitions and their disposition. The petition shall state whether, in the opinion of the petitioner, the taking of evidence is necessary for the proper disposition of the petition. The petition shall be accompanied by a return of service executed by the appropriate officer evidencing service of a copy thereof upon the Attorney General of Virginia or by an acceptance of service signed by the Attorney General or the Attorney General's representative.
(c) Response. Within 30 days after service of the petition, the Attorney General shall file with the clerk of this Court a responsive pleading, which may include a motion to dismiss. The response shall include citation to the relevant legal authorities and shall state whether, in the opinion of the Attorney General, the taking of evidence is necessary for the proper disposition of the petition.
(d) Reply. Within 20 days after the Attorney General's responsive pleading is filed pursuant to subparagraph (c), the petitioner may file a reply.
(e) Copies to be Filed. Ten copies of the petition, the Attorney General's responsive pleading, and the petitioner's reply shall be filed in the office of the clerk of this Court.
(f) Motions. Upon the filing of any motion other than a motion to dismiss included in a responsive pleading filed pursuant to subparagraph (c) of this Rule , or upon the filing of an objection pursuant to Code §/n 8.01-654(C)(3), the opposing party may file a response within ten days of the filing of the motion or objection, or within such time as this Court may order.
(g) Length. Except by permission of a justice of this Court, no petition for a writ of habeas corpus or a response thereto shall exceed 50 typed or 36 printed pages, and no reply to a response shall exceed 15 typed or 12 printed pages. Page limits under this Rule do not include appendices. All petitions, responses, replies, motions, and other papers filed pursuant to this Rule shall conform to the provisions of Rule 5:6(a).
(h) Further Proceedings by Order of this Court. Further proceedings shall be conducted in accordance with the orders of this Court. If it is determined that an evidentiary hearing is necessary for the proper disposition of the petition, the Court shall enter an order directing the circuit court that entered the judgment imposing the sentence of death to conduct such a hearing in accordance with the provisions of Code §/n 8.01-654(C)(1), (2), and (3).
(i) Cases in Which No Petition is Pending in the Circuit Court. If, prior to July 1, 1995, the Supreme Court of the United States denied a petition for a writ of certiorari on direct appeal, or the time for filing such a petition expired without such a petition being filed, and no petition for a writ of habeas corpus was filed in a circuit court prior to that date, a petition to this Court for a writ of habeas corpus in a case in which a sentence of death has been imposed shall be filed in the office of the clerk of this Court no later than six months after July 1, 1995.
(j) Cases in Which Petition is Pending in the Circuit Court. If a petition for a writ of habeas corpus was filed in a circuit court and no judgment was entered prior to July 1, 1995, the circuit court shall order the case and the entire record transferred to this Court forthwith. Upon such transfer, the case shall be placed upon the docket of this Court for consideration and disposition.
Rule 5:8 C. Procedure for Filing an Appeal From a Trial Court.
Rule 5:8.1 Applicability.
This Section C applies only to cases where direct appeal to this Court from a trial court is authorized by law.
Rule 5:9 Notice of Appeal.
(a) Timeliness. No appeal shall be allowed unless, within 30 days after the entry of final judgment or other appealable order or decree, counsel for the appellant files with the clerk of the trial court a notice of appeal and at the same time mails or delivers a copy of such notice to all opposing counsel.
(b) Content. The notice of appeal shall contain a statement whether any transcript or statement of facts, testimony and other incidents of the case will be filed. In the event a transcript is to be filed, the notice of appeal shall certify that a copy of the transcript has been ordered from the court reporter who reported the case.
(c) Separate Cases. Whenever two or more cases were tried together in the trial court, one notice of appeal and one record may be used to bring all of such cases before this Court even though such cases were not consolidated by formal order.
Rule 5:10 Record on Appeal: Contents.
(a) Contents. The following constitute the record on appeal from the trial court:
(1) the original papers and exhibits filed or lodged in the office of the clerk of the trial court, including any report of a commissioner in chancery and the accompanying depositions and other papers;
(2) each instruction marked "given" or "refused" and initialed by the judge;
(3) each exhibit offered in evidence, whether admitted or not, and initialed by the trial judge (or any photograph thereof as authorized by §19.2-270.4 (A) and (C)). (All non-documentary exhibits shall be tagged or labeled in the trial court and the tag or label initialed by the judge.);
(4) the original draft or a copy of each order entered by the trial court;
(5) any opinion or memorandum decision rendered by the judge of the trial court;
(6) any deposition and any discovery material encompassed within Part Four offered in evidence (whether admitted or rejected) at any proceeding; and
(7) the transcript of any proceeding or a written statement of facts, testimony, and other incidents of the case when made a part of the record as provided in Rule 5:11, or the official videotape recording of any proceeding in those circuit courts authorized by the Supreme Court to use videotape recordings. The Supreme Court may require that any videotape proceedings be transcribed, in whole or in part, and made a part of the record as provided in Rule 5:11, except that the transcript shall be filed within 60 days after the entry of the order requiring such transcript; and
(8) the notice of appeal.
(b) Disagreement on Contents. If disagreement arises as to the contents of any part of the record, the matter shall be submitted to and decided by the trial court.
Rule 5:11 Record on Appeal: Transcript or Written Statement.
(a) Transcript. The transcript of any proceeding is a part of the record when it is filed in the office of the clerk of the trial court within 60 days after entry of judgment.
(b) Notice. Within ten days after the transcript is filed or, if the transcript is filed prior to the filing of the notice of appeal, within ten days after the notice of appeal is filed, counsel for appellant shall (1) give written notice to all other counsel of the date on which the transcript was filed, and (2) file a copy of the notice with the clerk of the trial court. There shall be appended to the notice either a certificate of counsel for appellant that a copy of the notice has been mailed to all other counsel or an acceptance of service of such notice by all other counsel.
When multiple transcripts are filed, the ten-day period for filing the notice required by this Rule shall be calculated from the date on which the last transcript is filed, or from the date on which the notice of appeal is filed, whichever is later. The notice of filing transcripts shall identify all transcripts filed and the date upon which the last transcript was filed. If the notice of appeal states that no additional transcripts will be filed and identifies the transcripts that have been filed, if any, then no additional written notice of filing of transcripts is required and the notice of appeal will serve as the notice of filing transcripts for purposes of Rule 5:11(b).
Any failure to file the notice required by this Rule that materially prejudices an appellee will result in the affected transcripts being stricken from the record on appeal. For purposes of this Rule , material prejudice includes preventing the appellee from raising legitimate objections to the contents of the transcript or misleading the appellee about the contents of the record. The appellee shall have the burden of establishing such prejudice in the brief in opposition or, if no brief in opposition is filed, in a written statement filed with the clerk of this Court within the time fixed by these rule for the filing of a brief in opposition.
When the appellant fails to ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by the omission shall not be considered.
(c) Written Statement. In lieu of a transcript, a written statement of facts, testimony, and other incidents of the case, which may include or consist of a portion of the transcript, becomes a part of the record when:
(1) within 55 days after entry of judgment a copy of such statement is filed in the office of the clerk of the trial court. A copy must be mailed or delivered to opposing counsel accompanied by notice that such statement will be presented to the trial judge no earlier than 15 days nor later than 20 days after such filing; and
(2) the statement is signed by the trial judge and filed in the office of the clerk of the trial court. The judge may sign the statement forthwith upon its presentation to him if it is signed by counsel for all parties, but if objection is made to the accuracy or completeness of the statement, it shall be signed in accordance with subsection (d) of this Rule .
(d) Objections. Any party may object to a transcript or written statement on the ground that it is erroneous or incomplete. Notice of such objection specifying the errors alleged or deficiencies asserted shall be filed with the clerk of the trial court within 15 days after the date the notice of filing the transcript (subsection (b) of this Rule ) or within 15 days after the date the notice of filing the written statement (subsection (c) of this Rule ) is filed in the office of the clerk of the trial court or, if the transcript or written statement is filed before the notice of appeal is filed, within 10 days after the notice of appeal has been filed with the clerk of the trial court. Counsel for the objecting party shall give the trial judge prompt notice of the filing of such objections. Within ten days after the notice of objection is filed with the clerk of the trial court, the judge shall:
(1) overRule the objections; or
(2) make any corrections that he deems necessary; or
(3) include any accurate additions to make the record complete; or
(4) certify the manner in which the record is incomplete; and
(5) sign the transcript or written statement.
At any time while the record remains in the office of the clerk of the trial court, the trial judge may, after notice to counsel and hearing, correct the transcript or written statement.
The judge's signature on a transcript or written statement, without more, shall constitute his certification that the procedural requirements of this Rule 5:11 have been satisfied.
Rule 5:12 Judge Authorized to Act.
The judge authorized to act in all matters relating to the record on appeal shall be any judge having authority to enter orders in the case or in the court in which the case was heard or, in a case heard by three judges, any one of them.
Rule 5:13 Record on Appeal: Preparation and Transmission.
(a) Preparation. The clerk of the trial court shall prepare the record as soon as possible after notice of appeal is filed. In the event of multiple appeals in the same case, or in cases tried together, only one record need be prepared and transmitted.
(1) The record shall be compiled in the following order:
(a) a front cover setting forth the name of the court and the short style of the case;
(b) a table of contents listing each paper included in the record and the page on which it begins;
(c) each paper constituting a part of the record in chronological order; and
(d) the certificate of the clerk of the trial court that the foregoing constitutes the true and complete record, except omitted exhibits as hereinafter provided.
(2) Each page of the record shall be numbered at the bottom.
(3) Transcripts, depositions, and reports of commissioners may be included in separate volumes identified by the clerk of the trial court if referred to in the table of contents and at the appropriate place in the record.
(4) Exhibits, other than those filed with pleadings, may be included in a separate volume or envelope certified by the clerk of the trial court, except that any exhibit that cannot be conveniently placed in a volume or envelope shall be identified by a tag. Each such volume or envelope shall include, on its cover or inside, a descriptive list of exhibits contained therein. Reference shall be made to exhibits in the table of contents and at the appropriate place in the record referred to in paragraph (1). Exhibits of unusual character, bulk, or weight may, at the option of the clerk of the trial court, and after written notice to all counsel, not be transmitted unless he is directed to do so by counsel or by the clerk of this Court. Counsel must make advance arrangements for the transportation and receipt of exhibits of unusual character, bulk, or weight.
(5) Any transcript or statement that the clerk of the trial court deems not a part of the record because of untimely filing shall be certified by him as such and transmitted with the record.
(c) Transmission. The clerk of the trial court shall retain the record for 21 days after the notice of appeal has been filed with him pursuant to Rule 5:9. If the notice of appeal states that a transcript or statement will thereafter be filed, the clerk of the trial court shall retain the record for 21 days after the filing in his office of such transcript or statement or, if objection is made to the transcript or statement pursuant to Rule 5:11(d), the clerk of the trial court shall retain the record for 5 days after the objection is acted upon by the trial judge. The clerk of the trial court shall then forthwith transmit the record to the clerk of this Court; provided, however, that, notwithstanding that the foregoing periods of retention may not have expired, the clerk of the trial court shall transmit the record sooner if requested in writing by counsel for all parties to the appeal and shall, whether or not so requested, transmit the record in time for delivery to the clerk of this Court within three months after entry of the judgment appealed from. The failure of the clerk of the trial court to transmit the record as herein provided shall not be a ground for dismissal of the appeal by this Court.
(d) Record Returned to Trial Court. When the mandate is issued by this Court, the clerk of this Court shall return the record to the clerk of the trial court or commission in which the proceeding originated. The record shall be returned by that clerk upon the request of the clerk of this Court.
Rule 5:14 D. Procedure for Filing an Appeal From the Court of Appeals.
Rule 5:14.1 Notice of Appeal; Certification.
(a) No appeal from a judgment of the Court of Appeals which is subject to appeal to this Court shall be allowed unless, within 30 days after entry of final judgment or order denying a rehearing, counsel filed with the clerk of the Court of Appeals a notice of appeal.
(b) Whenever this Court shall certify a case pending in the Court of Appeals for review by this Court, notice of certification shall be given by the clerk of this Court to all counsel and to the clerk of the Court of Appeals. A case certified for review by this Court shall proceed as if a petition for appeal had been granted by this Court on the date of the certification for review, except as otherwise ordered.
Rule 5:15 Record on Appeal From Court of Appeals or Certification for Review.
In cases on appeal from the Court of Appeals and those certified for review, the record in this Court shall consist of the record as filed in the office of the clerk of the Court of Appeals and, in addition, all other papers relating to the case which have been filed in the office of the clerk of the Court of Appeals, including any opinion or memorandum decision in cases decided by the Court of Appeals. The clerk of the Court of Appeals shall transmit all such documents to the clerk of this Court within 10 days after the filing of the notice of appeal to this Court or the issuance of the certification for review. The clerk of the Court of Appeals shall certify that the papers so transmitted constitute the record in the Court of Appeals.
Rule 5:16 Disposition of Record.
When there can be no further proceedings in this Court, the clerk of this Court shall return the record to the clerk of the trial court or Commission in which the case originated. The record shall be returned by that clerk upon the request of the clerk of this Court.
Rule 5:17 E. Perfecting the Appeal.
Rule 5:17.1 Petition for Appeal.
(a) Time for Filing. In every case in which the appellate jurisdiction of this Court is invoked, a petition for appeal must be filed with the clerk of this Court:
(1) in the case of an appeal direct from a trial court, not more than three months after entry of the order appealed from; or
(2) in the case of an appeal from the Court of Appeals, within 30 days after entry of the judgment appealed from or a denial of a petition for rehearing.
(b) Copy to Opposing Counsel. At the time the petition for appeal is filed, a copy of the petition shall be served on counsel for the appellee.
(c) Form and Content. Under a separate heading entitled ""Assignments of Error,'' the petition shall list the specific errors in the rulings below upon which the appellant intends to rely. Only errors assigned in the petition for appeal will be noticed by this Court. Where appeal is taken from a judgment of the Court of Appeals, only assignments of error relating to questions presented in, or to actions taken by, the Court of Appeals may be included in the petition for appeal to this Court. An assignment of error which merely states that the judgment or award is contrary to the law and the evidence is not sufficient. If the petition for appeal does not contain assignments of error, the appeal will be dismissed.
Under another separate heading entitled "Questions Presented," the petition shall list the questions upon which the appellant intends to submit argument, with a clear and exact reference to the particular assignment of error to which each question relates.
Where appeal is taken from a judgment of the Court of Appeals in a case where judgment is made final under Code §17.1-410, the petition for appeal shall contain a statement setting forth in what respect the decision of the Court of Appeals involves (1) a substantial constitutional question as a determinative issue, or (2) matters of significant precedential value. If the petition for appeal does not contain such a statement, the appeal will be dismissed.
The petition also shall contain:
(1) A subject index and table of citations with cases alphabetically arranged. Citations of Virginia cases shall be to the Virginia Reports and the Southeastern Reporter. Citations of all authorities shall include the year thereof.
(2) A brief statement of the nature of the case and of the material proceedings in the trial court or commission in which the case originated. This statement shall omit references to any paper filed or action taken that does not relate to the assignments of error.
(3) A clear and concise statement of the facts that relate to the assignments of error, with references to the pages of the record, when there is any possibility that the appellee may question the statement. Any quotation from the record should be brief. When the facts are in dispute, the petition shall so state. The testimony of individual witnesses should not be summarized seriatim unless the facts are in dispute and such a summary is necessary to support the appellant's version of the facts.
(4) The principles of law, the argument, and the authorities relating to each assignment of error. With respect to each assignment of error, the principles, the argument, and the authorities shall be stated in one place and not scattered through the petition. At the option of counsel, the argument may be preceded by a brief summary.
(5) A short conclusion stating the precise relief sought.
Four copies of the petition shall be filed. Carbon copies are acceptable. Except by leave of a justice of this Court, a petition for appeal shall not exceed 35 typed or 25 printed pages.
(d) Single Petition in Separate Cases. Whenever two or more cases were tried together in the court or commission below, one petition for appeal may be used to bring all such cases before this Court even though the cases were not consolidated below by formal order.
(e) Required Certificate. The appellant shall include within the petition for appeal a certificate stating:
(1) the names of all appellants and appellees, the names, addresses, and telephone numbers of counsel for each party, and the address and telephone number of any party not represented by counsel;
(2) that a copy of the petition for appeal has been mailed or delivered on the date stated therein to all opposing counsel and all parties not represented by counsel;
(3) in a criminal case, a statement whether counsel for defendant has been appointed or privately retained; and
(4) whether he desires to state orally to a panel of this Court the reasons why his petition for appeal should be granted, and, if so, whether he wishes to do so in person or by conference telephone call.
(f) Filing Fee. The petition must be accompanied by a check or money order payable to the clerk of this Court for the amount required by statute. The statutory fee shall be due at the time such petition is presented. The clerk of this Court may file any petition that is not accompanied by such fee if the fee is received by the clerk within ten days of the date the petition for appeal is filed. If the fee is not received within such time, the petition for appeal shall be dismissed.
(g) Oral Argument. The appellant shall be entitled to state orally, in person or by conference telephone call, to a panel of this Court the reasons why his petition for appeal should be granted. The appellant may waive the right to oral argument on the petition for appeal before a panel by notifying the clerk of this Court and opposing counsel in writing, or by filing a reply brief.
Rule 5:17A Petition for Review Pursuant to Code §8.01-626.
(a) Time for Filing. In every case in which the jurisdiction of this Court is invoked pursuant to Code §/n 8.01-626, a petition for review must be filed with the clerk of this Court within 15 days of the order sought to be reviewed.
(b) Copy to Opposing Counsel. At the time the petition for review is filed, a copy of the petition shall be served on counsel for the respondent.
(c) Length. Except by permission of a justice of this Court, a petition for review shall not exceed 15 typed or printed pages.
(d) Copies. Four copies shall be filed. Carbon copies are acceptable.
(e) Filing Fee. The petition must be accompanied by a check or money order payable to the clerk of this Court for the amount required by statute. The statutory fee shall be collected at the time such petition is presented and the clerk of this Court shall not file a petition that is not accompanied by such fee.
(f) Scope. Final judgments within the meaning of Code §/n 8.01-670 are not reviewable by a justice of this Court under Code §/n 8.01-626. Omega Corp. v. Cobb, 222 Va. 875, 292 S.E.2d 44 (1981).
Rule 5:18 Brief in Opposition.
(a) Filing Time. A brief in opposition to granting the appeal may be filed with the clerk of this Court by the appellee within 21 days after petition for appeal is served on counsel for the appellee. Within the same time he shall mail or deliver a copy to counsel for appellant. Four copies shall be filed. Carbon copies are acceptable.
(b) Form and Content. The brief in opposition shall conform in all respects to the requirements of the brief of appellee (Rule 5:28). The brief in opposition may include assignments of cross-error and, except in cases of appeals of right to this Court, no cross-error not then assigned will be noticed by this Court. The provisions of Rule 5:25 shall apply to limit the questions upon which this Court will Rule on appeal. Except by leave of a justice of this Court, the brief shall not exceed 25 typed or 20 printed pages. If the brief exceeds 10 pages, it shall contain a subject index and table of citations with cases alphabetically arranged.
(c) Expedited Review. When it clearly appears that an appeal ought to be granted without further delay, an appeal may be granted before the filing of the brief in opposition.
Rule 5:19 Reply Brief.
When a brief in opposition to the petition for appeal has been filed, the appellant may, within 7 days thereafter, in lieu of oral argument, file with the clerk of this Court a reply brief not to exceed 15 typed or printed pages in length. Four copies shall be filed. Carbon copies are acceptable.
When cross-error is assigned in a brief in opposition, the appellant may, without waiving oral argument, file with the clerk of this Court within the said 7-day period a 10-page typed or printed reply brief which addresses only the cross-error. Four copies shall be filed. Carbon copies are acceptable.
Rule 5:20 Denial of Appeal; Petition for Rehearing.
When a petition for appeal is denied, the clerk of this Court shall mail a copy of the order denying the appeal to counsel for the appellant and counsel for the appellee. Counsel for the appellant may, within 14 days after the date of this notice, file in the office of the clerk of this Court a petition for rehearing not to exceed 15 typed or printed pages in length. The petition shall state that a copy has been mailed or delivered to counsel for the appellee. Ten copies shall be filed. Carbon copies are acceptable. Oral argument on the petition for rehearing will not be allowed. No responsive brief shall be filed unless requested by this Court. The clerk of this Court shall notify counsel for the appellant and counsel for the appellee of the action taken by this Court on the petition for rehearing.
Rule 5:21 F. Special rule.
Rule 5:21.1 Special rule Applicable to Appeals From the State Corporation Commission.
(a) Applicability. This Rule applies to all appeals from the State Corporation Commission and supersedes all other rule except as otherwise specified herein.
(b) Party. For the purposes of this Rule , the Commission, the Attorney General, the applicant or petitioner, and every person who made an appearance in person in a capacity other than as a witness or by counsel at any hearing in any proceeding before the Commission shall be the parties to such proceeding. Upon the request of any party, the clerk of the Commission shall prepare and certify a list of all parties (including their addresses and the names and addresses of their counsel) to a proceeding before the Commission. Initially, the parties to an appeal from an order in a proceeding shall be the parties to that proceeding, but the number of parties to an appeal may thereafter be limited as hereinafter provided. Service upon a party represented by counsel shall be made upon his counsel.
(c) Notice of Appeal. No appeal from an order of the Commission shall be allowed unless, within 30 days after entry of the order appealed from, counsel files in the office of the clerk of the Commission a notice of appeal, a copy of which has been mailed or delivered to each party to the appeal and appended to which is either an acceptance of such service or a certificate showing the date of delivery or mailing. All appeals from the same order shall be deemed to be a single consolidated case in this Court unless this Court shall order a severance for convenience of hearing.
(d) Record. The clerk of the Commission shall prepare and certify the record as soon as possible after the notice of appeal is filed and shall, as soon as it has been certified by him, transmit it to the clerk of this Court within 4 months after entry of the order appealed from. In the event of multiple appeals in the same case or in cases tried together below, only one record need be prepared and transmitted.
(e) Contents of Record. The record on appeal from the Commission shall consist of all notices of appeal, any application or petition, all orders entered in the case by the Commission, the opinions, the transcript of any testimony received, and all exhibits accepted or rejected, together with such other material as may be certified by the clerk of the Commission to be a part of the record. The record shall conform as nearly as practicable to the requirements of Rule 5:10.
(f) Alignment of Parties. Within 21 days after the notice of appeal shall have been filed in the office of the clerk of the Commission, each party who has not filed a notice of appeal and who intends to participate in the appeal shall file in the office of the clerk of the Commission and shall mail to every other party a notice that he intends to participate as an appellant or as an appellee. Every party who seeks reversal or modification of the order appealed from shall be deemed an appellant, and every party who seeks affirmance of the order appealed from shall be deemed an appellee. Every party who does not file such a notice and every party who, having filed such a notice as an appellant, does not thereafter file a petition for appeal shall be deemed no longer to be a party to the appeal, and no further papers need be served on him. Notwithstanding the foregoing provisions, (1) a necessary party who does not file such a notice or petition for appeal shall be deemed an appellee, and (2) the Commission need not file such a notice and shall be deemed an appellee.
(g) Petition for Appeal. The petition(s) for appeal shall be filed in the office of the clerk of this Court within 4 months after entry of the final order, judgment or finding by the Commission. Each party deemed to be an appellant shall file a petition for appeal and shall, before the petition is filed, mail or deliver a copy to every other party to the appeal. Except as provided herein, the provisions of Rule 5:17 do not apply to a petition filed pursuant to this paragraph. The petition for appeal need only identify the order appealed from, with its date, contain a prayer that the appeal be granted, and include the certificate required by Rule 5:17(e)(1), (2) and (4). Oral argument on the petition shall not be allowed nor will a brief in opposition be received. If the petition prays for a suspension of the effectiveness of the order appealed from, it shall contain such statements of the facts and argument as shall be necessary for an understanding of the question presented. In that event, a brief in opposition will be received and oral argument may be granted.
(h) Award of Appeal. When the notice of appeal, the record, and the petition(s) for appeal appear to have been filed in the manner provided herein and within the time provided herein and by law, the clerk of this Court shall forthwith enter an order granting the appeal, requiring such bond as he shall deem proper. His action shall be subject to review by this Court.
(i) Assignments of Error. Within 10 days after the issuance by the clerk of this Court of his certificate pursuant to Rule 5:23, each party appellant shall file assignments of error in the office of the clerk of this Court and mail a copy thereof to every other party to the appeal. Only errors so assigned will be noticed by this Court and no error not so assigned will be admitted as the ground for reversal of the decision below. Error will not be sustained to any ruling by the Commission unless the objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice. An assignment of error which merely states that the judgment is contrary to the law and the evidence is not sufficient.
(j) Further Proceedings. Further proceedings in this Court shall conform to rule 5:23 through 5:40 provided that (i) the time within which the appellee may file with the clerk of this Court a designation of the additional parts of the record that he wishes included in the appendix (Rule 5:32(d)) shall be extended to 30 days after the date of the certificate of the clerk of this Court pursuant to Rule 5:23 an appeal has been awarded; and (ii) the time within which the opening brief of the appellant shall be filed in the office of the clerk of this Court shall be extended to 50 days after such date.
(k) Additional Brief. An appellant who seeks relief different from that sought by another appellant may file an answering brief at the time prescribed for filing the brief of appellee.
Rule 5:22 Special Rule Applicable to Cases in Which Sentence of Death Has Been Imposed.
(a) Upon receipt of a record pursuant to §17.1-313 B, the clerk of this Court shall notify in writing counsel for the accused in the circuit court (who shall be deemed to be counsel for the appellant), the Attorney General (who shall be deemed to be counsel for the appellee), and the Director of the Department of Corrections of the date of its receipt (the Filing Date). The case shall thereupon stand matured as if an appeal had been awarded to review the conviction and the sentence of death, and the notice issued by the clerk of this Court shall be deemed to be the certificate of the clerk of this Court pursuant to Rule 5:23 that an appeal has been awarded, and the enforcement of the sentence of death shall thereby be stayed pending the final determination of the case by this Court.
(b) Within 10 days after the Filing Date, counsel for the appellant shall file with the clerk of this Court assignments of error upon which he intends to rely for reversal of the conviction or review of the sentence of death. He shall accompany the assignments of error with a designation of the parts of the record relevant to the review and to the assignments of error. Not more than 10 days after such assignments of error and designation are filed, counsel for the appellee may file with the clerk of this Court a designation of the additional parts of the record that he wishes included as germane to the review or to any assignments of error. Counsel for the appellant shall include in the appendix the parts so designated. The provisions of rule 5:31 and 5:32 (except Rule 5:32(d)) shall apply to the appendix.
(c) With respect to the sentence of death, it shall be a sufficient assignment of error to state that the sentence was imposed under the influence of passion, prejudice, or other arbitrary factor or that the sentence is excessive or disproportionate to the penalty imposed in similar cases.
(d) Except to the extent that a conflict with this Rule may arise (and this Rule shall then be controlling), further proceedings in the case shall conform to the rule relating to cases in which an appeal has been perfected.
(e) This Court may, on motion in a particular case, vary the procedure prescribed by this Rule in order to attain the ends of justice and the purpose of §17-110.1 [17.1-313].
Rule 5:23 G. Procedure Following Perfection of Appeal.
Rule 5:23.1 Perfection of Appeal; Docketing.
(a) Grant of Petition for Appeal. Promptly after a petition for appeal has been granted, the clerk of this Court shall certify this action to counsel for the appellant, counsel for the appellee, and the tribunal from which the appeal is taken. The case shall be considered mature for purposes of further proceedings from the date of such certificate.
(b) Docketing. Cases shall be placed on the docket when they mature. Precedence shall be given to the following cases:
(1) review of sentences of death;
(2) criminal cases;
(3) cases from the State Corporation Commission;
(4) cases of original jurisdiction;
(5) cases to be reheard; and
(6) any other cases required by statute to be given precedence.
This Court may, however, for good cause shown or for reasons appearing sufficient to the Court, give preference to other cases.
Rule 5:24 Security for Appeal.
(a) All security for appeal required under Code §8.01-676.1 shall substantially conform to the forms set forth in the Appendix to this Part Five.
(b) No appeal shall be dismissed because of a defect in any bond or irrevocable letter of credit unless an appellee, within 21 days after the issuance of the certificate pursuant to Rule 5:23, files with the clerk of this Court a statement in writing of the defects in the bond or irrevocable letter of credit, and unless the appellant fails to correct such defects, if any, within 21 days after such statement is filed. If the appellant fails to correct such defects within such period of 21 days, an appellee may move that the appeal be dismissed and it shall be dismissed unless the appellant satisfies this Court that the bond or irrevocable letter of credit, either as originally given or as amended, has been filed in the required form.
Rule 5:25 Questions to Be Considered.
Error will not be sustained to any ruling of the trial court or the commission before which the case was initially tried unless the objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice.
Rule 5:26 Briefs.
(a) Length. Except by permission of a justice of this Court, neither the opening brief of appellant, nor the brief of appellee, nor a brief amicus curiae shall exceed 50 typed or 36 printed pages. No reply brief shall exceed 15 typed or 12 printed pages. Page limits under this Rule do not include appendices.
(b) Filing Time. In cases where a petition for appeal has been granted by this Court, briefs shall be filed as follows:
(1) The appellant shall file the opening brief in the office of the clerk of this Court within 40 days after the date of the certificate of appeal issued by the clerk of this Court pursuant to Rule 5:23.
(2) The brief of appellee shall be filed in the office of the clerk of this Court within 25 days after filing of the opening brief.
(3) The appellant may file a reply brief in the office of the clerk of this Court within 14 days after filing of the brief of appellee.
(c) Extension of Time. By agreement of all counsel and with permission of a justice of this Court, the time for filing any brief in this court may be altered.
(d) Copies. Twenty copies of each brief (including a brief amicus curiae) shall be filed in the office of the clerk of this Court and three copies shall be mailed or delivered to opposing counsel on or before the day on which the brief is filed. Three copies of a brief amicus curiae shall be mailed or delivered to counsel for all parties and to any other counsel amicus curiae. Each brief shall contain a certificate evidencing such mailing or delivery.
(e) Reference to Parties. In their briefs, counsel should avoid reference to parties by such designations as ""appellant'' and ""appellee.'' Clarity is promoted by the use of the names of the parties or descriptive terms such as ""the employee,'' ""the injured person,'' ""the driver,'' ""the wife,'' or the designations used in the lower court or commission.
Rule 5:27 Opening Brief of Appellant.
The form and contents of the opening brief of appellant shall conform in all respects to the requirements of the petition for appeal set forth in Rule 5:17(c), except that references shall be to the pages of the appendix rather than the pages of the record. In addition, the opening brief shall contain the signature (which need not be in handwriting) of at least one counsel, counsel's address, and a certificate (which need not be signed in handwriting) that there has been compliance with Rule 5:26(d).
Rule 5:28 Brief of Appellee.
The brief of appellee shall contain:
(a) A subject index and table of citations with cases alphabetically arranged. Citations of Virginia cases shall be to the Virginia Reports and the Southeastern Reporter. Citations of all authorities shall include the year thereof.
(b) A statement of the case and of the questions presented if the appellee disagrees with the statement or questions presented by the appellant. If the appellee believes that any question presented by the appellant is unrelated to an assignment of error, he shall so state. In an appeal of right to this Court from an order disciplining, suspending, or disbarring an attorney-at-law, the Virginia State Bar may include assignments of cross-error. In such cases, no cross-error not then assigned will be noticed by this Court.
(c) A statement of the facts necessary to correct or amplify the statement in the brief of appellant with appropriate references to the pages of the appendix. Any quotation from the record should be brief. The testimony of individual witnesses should not be summarized seriatim unless the facts are in dispute and such a summary is necessary to support the appellee's version of the facts.
(d) The principles of law, the argument, and the authorities relating to each question presented. With respect to each question, the principles, the argument, and the authorities shall be stated in one place and not scattered through the brief. At the option of counsel, the argument may be preceded by a brief summary.
(e) With respect to the assignments of cross-error, if any:
(1) A statement of the question presented with a clear and exact reference to the particular assignment of cross-error to which each question relates.
(2) The principles of law, the argument and the authorities relating to each question presented. With respect to each such question, the argument and the authorities shall be stated in one place and not scattered through the brief.
(3) A statement of the precise relief sought.
(f) The signature (which need not be in handwriting) of at least one counsel and his address.
(g) A certificate (which need not be signed in handwriting) that Rule 5:26(d) has been complied with.
Rule 5:29 Reply Brief.
The reply brief, if any, shall contain argument in reply to contentions made in the brief of appellee. No reply brief is necessary if the contentions have been adequately answered in the opening brief of appellant. The reply brief shall comply with Rule 5:17(c)(1) and shall contain the signature (which need not be in handwriting) of at least one counsel and his address and a certificate (which need not be signed in handwriting) that there has been compliance with Rule 5:26(d).
Rule 5:30 Briefs Amicus Curiae.
(a) A brief amicus curiae may be filed:
(1) on behalf of the United States or the Commonwealth of Virginia without the prior consent of this Court or counsel;
(2) by any other person if it is accompanied by the written consent of all counsel; or
(3) otherwise only on motion (which may be accompanied by the proposed brief) and the consent of this Court.
(b) A brief amicus curiae will be accepted only if filed on or before the date on which the brief of the party supported is required to be filed. A brief amicus curiae may be filed at the time of filing of the reply brief of the appellant only if an opening brief amicus curiae has been filed.
(c) A brief amicus curiae shall comply with the rule applicable to the brief of the party supported.
(d) Notwithstanding the provisions of paragraph (b), this Court may request that a brief amicus curiae be filed at any time.
Rule 5:31 Covers of Documents.
(a) To facilitate identification, documents shall bear covers colored as follows:
Document Color of Cover Appendix Red Brief of the Appellant White Brief of the Appellee Blue Reply Brief of the Appellant Green Brief Amicus Gray Petition for Rehearing Yellow
(b) No appeal shall be dismissed for failure to comply with the provisions of this Rule .
Rule 5:32 Appendix.
(a) When Required. An appendix shall be filed by the appellant in all cases no later than the time of filing his opening brief.
(b) Filing. The appellant shall file an appendix as a separate volume. The number of copies filed and mailed to opposing counsel shall conform to Rule 5:26(d).
(c) Contents. An appendix shall include:
(1) the basic initial pleading (as finally amended);
(2) the final judgments of all tribunals that have considered the case, including judgment appealed from, and any memorandum or opinion relating to any of such judgments;
(3) any testimony and other incidents of the case germane to the questions presented;
(4) the title (but not the caption) of each paper contained in the appendix, and its filing date;
(5) the names of witnesses printed at the beginning of excerpts from their testimony and at the top of each page thereof and whether the examination is direct or cross;
(6) exhibits necessary for an understanding of the case that can reasonably be reproduced; and
(7) the assignments of error and cross-error.
(d) Determination of Contents. Within 10 days after the date of the certificate of the clerk of this Court issued pursuant to Rule 5:23(a), counsel for appellant shall file in the office of the clerk of this Court a written statement signed by all counsel setting forth an agreed designation of the parts of the record on appeal to be included in the appendix. In the absence of agreement, counsel for appellant shall file with the clerk of this Court within 15 days after the date of such certificate a designation of the parts of the record to be included in the appendix; not more than 10 days after this designation is filed, counsel for appellee shall file with the clerk of this Court a designation of any additional parts of the record to be included in the appendix. The appellant shall include in the appendix the parts thus designated, together with any additional parts he considers germane.
(e) Table of Contents; Form of Presentation. At the beginning of the appendix there shall be a table of contents, which shall include the name of each witness whose testimony is included in the appendix and the page number of the appendix at which each portion of the testimony of the witness begins. Thereafter, the parts of the record to be reproduced shall be set out in chronological order. When matter contained in the transcript of proceedings is set out in the appendix, the page of the transcript or of the record at which such matter may be found shall be indicated in brackets immediately before the matter which is set out. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial matters (such as captions, subscriptions, and acknowledgements) shall be omitted. A question and its answer may be contained in a single paragraph.
(f) Costs. Unless counsel otherwise agree, the cost of producing the appendix shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determination of the issue presented, he may so advise the appellee, and the appellee shall advance the cost of including such parts. The cost of producing the appendix shall be taxed as costs in the case.
(g) Penalty. Nothing shall be included in the appendix that is not germane to an assignment of error. As examples, no pleading (other than the basic initial pleading as finally amended) shall be included unless error is assigned relating to it, and then only the portion thereof to which the assignment relates; and testimony relating solely to the amount of damages shall not be included unless error is assigned relating to the amount of damages. If parts of the record are included in the appendix unnecessarily at the direction of a party, this Court may impose the cost of producing such parts on that party.
(h) Assumptions. It will be assumed that the appendix contains everything germane to the questions presented. This Court may, however, consider other parts of the record.
Rule 5:33 Effect of Noncompliance With rule Regarding Briefs.
If neither party has filed a brief in compliance with these rule, this Court may dismiss the appeal. If one party has but the other has not filed such a brief, the party in default will not be heard orally, except for good cause shown.
Rule 5:34 Hearing of Appeals on the Original Record Without an Appendix or With an Abbreviated Appendix.
Notwithstanding the provisions of Rule 5:32(a), this Court may by Rule for all cases, or for classes of cases, or by order in specific cases, dispense with the requirement of an appendix and permit appeals to be heard on the original record, with such copies of the record, or relevant parts thereof, as this Court may require.
Rule 5:35 Oral Argument.
(a) Notice. The clerk of this Court, except in extraordinary circumstances, shall give at least 15 days advance notice to counsel of the date and approximate time for oral argument.
(b) Length. Except as otherwise directed by this Court, argument for a party shall not exceed 30 minutes in length. Such time may be apportioned among counsel for the same side at their discretion.
(c) Amicus Curiae. No oral argument by amicus curiae is permitted except by leave of this Court. Leave may be granted upon the joint written request of amicus curiae and the party whose position amicus curiae supports. The request shall specify the amount of its allotted time the supported party is willing to yield to amicus curiae.
(d) Reference to Parties. In oral argument, counsel should avoid reference to parties by such designations as ""appellant'' and ""appellee.'' Clarity is promoted by the use of the name of the parties or descriptive terms such as ""the employee,'' ""the injured person,'' ""the driver,'' ""the wife,'' or the designations used in the lower court or commission.
(e) Waiver. Any party may, without waiving the arguments made on brief, waive oral argument.
Rule 5:36 H. Decision, Costs, and Mandate.
Rule 5:36.1 Notice of Decision and Order.
Promptly after this Court has decided a case, the clerk of this Court shall mail or deliver a copy of the decision to all counsel and to the judge of the trial court in which the case originated and to the members of the State Corporation Commission if the case originated before that Commission.
Rule 5:37 Costs.
(a) To Whom Allowed. Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by this Court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; if a judgment is affirmed in part or reversed in part, or is vacated, costs shall be allowed as ordered by this Court.
(b) Taxable Costs. Costs, including the filing fee and costs incurred in the printing or producing of necessary copies of briefs, appendices, and petitions for rehearing, shall be taxable in this Court.
(c) Award. Counsel for a party who desires costs to be taxed shall itemize them in a verified bill of costs, which shall be filed with the clerk of this Court within 10 days after the date of the decision in the case. Objections to the bill of costs must be filed with the clerk of this Court within 14 days after the date of filing the bill of costs. The clerk of this Court shall prepare and certify an itemized statement of costs taxed in such Court for insertion in the mandate, but the issuance of the mandate shall not be delayed for taxation of costs. If the mandate has been issued before final determination of costs, the statement, or any amendment thereof, shall be added to the mandate on request by the clerk of this Court to the clerk of the tribunal in which the case originated.
Rule 5:38 Mandate.
(a) Time. When there can be no further proceedings in this Court, the clerk of this Court shall forward its mandate promptly to the clerk of the court or commission in which the case originated and to the clerk of the Court of Appeals if the case has been heard by that court.
(b) Opinions. If the judgment or order is supported by an opinion, a certified copy of the opinion shall accompany the mandate.
Rule 5:39 Rehearing.
(a) This Rule does not apply to the denial of a petition for appeal. See Rule 5:20.
(b) A party intending to apply for a rehearing shall file written notice with the clerk of this Court within 10 days after the date of the order of this Court deciding the case. If such notice is given, the clerk of this Court shall withhold certification of the mandate until time for filing the petition for rehearing has expired and, if the petition is filed, until it is disposed of.
(c) Unless the rehearing is abandoned, 20 copies of a petition for rehearing not to exceed 15 typed or printed pages in length shall be thereafter filed in the office of the clerk of this Court and 3 copies delivered or mailed to opposing counsel within 30 days after the date of the order of this Court deciding the case.
(d) No petition for rehearing shall be allowed unless one of the justices who decided the case adversely to the applicant is of opinion that there is good cause for such rehearing. The proceedings upon such rehearing shall be in accordance with §8.01-675.2 of the Code. No oral argument will be permitted on applications for rehearing.
(e) When a rehearing is granted, the case will be placed on the privileged docket for oral argument. The petitioner may not file any brief in addition to the petition for rehearing. The respondent may file in the office of the clerk of this Court 20 copies of the brief in reply to the petition and shall deliver or mail 3 copies to opposing counsel. Such brief in reply shall not exceed 15 typed or printed pages in length and shall be filed within 21 days after the date of the order granting the rehearing. The respondent will be heard orally whether or not he filed such brief. The case will be called at the next session of the Court after the expiration of the 21 days unless counsel agree that it be called at a session of the Court commencing at an earlier time.
Rule 5:40 I. Settlement.
Rule 5:40.1 Settlement of Pending Appeal.
When a case has been settled or the appeal withdrawn at any time after the record has been filed, it shall be the duty of counsel to notify the clerk of this Court that the case has been settled or the appeal withdrawn. If counsel certifies that the terms of the settlement or withdrawal require further proceedings in the trial court, an order of remand may be entered by a single justice.
Rule 5:41 J. Supreme Court of the United States.
Rule 5:41.1 Procedure Upon Appeal or Petition to Supreme Court of the United States.
If a party proposes to file an appeal with the Supreme Court of the United States or seek a writ of certiorari from that court, this Court may, upon motion filed within 15 days after the date of the order of this Court deciding the case, and upon compliance with such conditions as this Court may impose, defer the issuance of its mandate until proceedings in the Supreme Court of the United States have been terminated. Thereupon, the mandate shall issue forthwith.
Rule 5:42 K. Certification of Questions of Law.
Rule 5:42.1 Certification Procedures.
(a) Power to Answer. The Supreme Court may in its discretion answer questions of law certified to it by the Supreme Court of the United States, a United States court of appeals for any circuit, a United States district court, or the highest appellate court of any state or the District of Columbia. Such answer may be furnished, when requested by the certifying court, if a question of Virginia law is determinative in any proceeding pending before the certifying court and it appears there is no controlling precedent on point in the decisions of the Supreme Court or the Court of Appeals of Virginia.
(b) Method of Invoking. This Rule may be invoked only by an order of one of the courts referred to in section (a). No party litigant in the foregoing courts may file in the Supreme Court a petition or motion for certification.
(c) Contents of Certification Order. A certification order shall set forth:
(1) the nature of the controversy in which the question arises;
(2) the question of law to be answered;
(3) a statement of all facts relevant to the question certified;
(4) the names of each of the parties involved;
(5) the names, addresses, and telephone numbers of counsel for each of the parties involved;
(6) a brief statement explaining how the certified question of law is determinative of the proceeding in the certifying court; and
(7) a brief statement setting forth relevant decisions, if any, of the Supreme Court and the Court of Appeals of Virginia and the reasons why such decisions are not controlling.
(d) Preparation of Certification Order. The certification order shall be prepared by the certifying court, signed by the presiding justice or judge, and forwarded to the Supreme Court by the clerk of the certifying court under its official seal. The Supreme Court may require the original or copies of all or of any portion of the record before the certifying court to be filed with the certification order, if, in the opinion of the Supreme Court, the record or portion thereof may be necessary in answering the certified question. The Supreme Court may in its discretion restate any question of law certified or may request from the certifying court additional clarification with respect to any question certified or with respect to any facts.
(e) Notification of Acceptance or Rejection. The Supreme Court, in its discretion, may decide whether to answer any certified question of law. The Supreme Court will notify the certifying court and counsel for the parties of its decision to accept or to reject any certified question of law. A notice accepting a question will include a briefing schedule and, if oral argument is permitted by the Supreme Court, a tentative date and the length of time allowed for such argument.
(f) Revocation of Acceptance. The Supreme Court, in its discretion, may revoke its decision to answer a certified question of law at any time. Upon deciding to revoke, the Supreme Court will notify the certifying court and counsel for the parties of its action.
(g) Costs of Certification. Fees and costs shall be the same as in civil appeals docketed in the Supreme Court and shall be paid as ordered by the certifying court in its order of certification.
(h) Briefs. The form, length, and time for submission of briefs shall comply with rule 5:26 through 5:34 mutatis mutandis.
(i) Opinion. A written opinion of the Supreme Court stating the law governing each question certified will be rendered as soon as practicable after the submission of briefs and after any oral argument. The opinion will be sent by the clerk under the seal of the Supreme Court to the certifying court and to counsel for the parties and shall be published in the Virginia Reports.
Rule 5:f-1 Appendix of Forms.
Rule 5:f-1.1 Bond for Costs Alone - Appeal of Right From Circuit Court to Court of Appeals (including further appeal to the Supreme Court).
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of _____________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas judgment was rendered by the Circuit Court of ________________________ on the __________________________ day of ___________________________, 19 ____, in the case of _______________________________________________________________ _____________________________________________________________________________; And whereas it is the intention of ___________________________________________ _________________ to appeal said judgment to the Court of Appeals of Virginia; Now, therefore, if ___________________________________________________________ appellant(s)
shall pay all damages, costs, and fees which may be awarded against (him) (her) (them) (it) in the Court of Appeals and Supreme Court if it takes cognizance of the claim, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5:f-2 Bond for Costs and Suspension - Appeal From Circuit Court to Appellate Court.
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of _____________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas judgment was rendered by the Circuit Court of ________________________ on the ________________________ day of _____________________________, 19 ____, in the case of _______________________________________________________________ _____________________________________________________________________________; And whereas it is the intention of ___________________________________________ to appeal said judgment to the (Supreme Court) (Court of Appeals) of Virginia, and suspension of execution of the judgment is sought; Now, therefore, if ___________________________________________________________ appellant(s)
shall perform and satisfy and said judgment or the part thereof proceedings on which are stayed, in case such judgment or such part be affirmed in whole or in part, or the appeal be dismissed, refused or not timely prosecuted, and shall pay all damages, costs, and fees which may be awarded against (him) (her) (them) (it) in the (Supreme Court) (Court of Appeals and Supreme Court if it takes cognizance of the claim) and all actual damages incurred in consequence of the suspension, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5:f-3 Bond for Costs Alone Required by Appellate Court on Appeal From Circuit Court.
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of _____________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas the (Supreme Court of Virginia) (Court of Appeals of Virginia) on the ____________ day of __________________, 19 ____, awarded an appeal from a judgment rendered against ____________________________ by the Circuit Court of appellant(s) ____________________________________________________, on the _________________ day of ________________________, 19 ____, upon _______________________________ _____________________________________, or someone for (him) (her) (them) (it), appellant(s) filing an appeal bond with sufficient security in the clerk's office of the Circuit Court of ____________________________________________________________, in the penalty of _____________________________________________________ within fifteen (15) days of the date of the certificate of appeal, with condition as the law directs; Now, therefore, if ___________________________________________________________ appellant(s)
shall pay all damages, costs, and fees which may be awarded against (him) (her) (them) (it) in the (Supreme Court) (Court of Appeals and Supreme Court if it takes cognizance of the claim), then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5:f-4 Bond for Suspension Alone Required by Appellate Court on Appeal From Circuit Court.
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of _____________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas the (Supreme Court of Virginia) (Court of Appeals of Virginia) on the ____________ day of __________________, 19 ____, awarded an appeal from a judgment rendered against ____________________________ by the Circuit Court of appellant(s) ____________________________________________________, on the _________________ day of ________________________, 19 ____, upon _______________________________ ____________________________________, or some one for (him) (her) (them) (it), appellant(s) filing an appeal bond with sufficient security in the clerk's office of the Circuit Court of ____________________________________________________________, in the penalty of _____________________________________________________ within fifteen (15) days of the date of the certificate of appeal, with condition as the law directs; Now, therefore, if ___________________________________________________________ appellant(s)
shall perform and satisfy said judgment or the part thereof proceedings on which are stayed, in case such judgment or such part be affirmed in whole or in part, and shall pay all actual damages incurred in consequence of the suspension, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5:f-5 Bond for Costs and Suspension Required by Appellate Court on Appeal From Circuit Court.
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of _____________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas the (Supreme Court of Virginia) (Court of Appeals of Virginia) on the ____________ day of __________________, 19 ____, awarded an appeal and (suspension of judgment) (supersedeas) from a judgment rendered against _______________________________________________________________ by the Circuit appellant(s) Court of ___________, on the ____________, day of __________________, 19 ____, upon ________________________________________________________, or some one for appellant(s) for (him) (her) (them) (it), filing an appeal bond with sufficient security in the clerk's office of the Circuit Court of __________________, in the penalty of ____________ within fifteen (15) days of the date of the certificate of appeal, with condition as the law directs; Now, therefore, if ___________________________________________________________ appellant(s)
shall perform and satisfy said judgment or the part thereof proceedings on which are stayed, in case such judgment or such part be affirmed in whole or in part, and shall pay all damages, costs, and fees which may be awarded against (him) (her) (them) (it) in the (Supreme Court) (Court of Appeals and Supreme Court if it takes cognizance of the claim) and all actual damages incurred in consequence of the suspension, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5:f-6 Additional Bond Required by Appellate Court on Appeal From Circuit Court.
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of _____________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas the (Supreme Court of Virginia) (Court of Appeals of Virginia) on the ________ day of ________________________, 19 ____, required additional bond on this appeal from a judgment rendered against _______________________ by the appellant(s) Circuit Court of ____________________________________________________________, on the ____________ day of ________, 19 ____, such additional bond to be filed in the clerk's office of the Circuit Court of __________________________ in the penalty of ____________________________________________________________ within fifteen (15) days of the date of the certificate of appeal, with condition as the law directs; Now, therefore, if ___________________________________________________________ appellant(s)
shall perform and satisfy said judgment or the part thereof proceedings on which are stayed, in case such judgment or such part be affirmed in whole or in part, and shall pay all actual damages incurred in consequence of the suspension, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5:f-7 Bond for Costs Alone - Appeal of Right From Virginia Workers' Compensation Commission to Court of Appeals (including further appeal to the Supreme Court).
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of _____________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas an award was entered by the Virginia Workers' Compensation Commission on the _____________ day of ________________________, 19 ____, in the case of ______________________________________________________________________________ _____________________________________________________________________________; And whereas it is the intention of ___________________________________________ ______________ to appeal said award to the Court of Appeals of Virginia; Now, therefore, if ___________________________________________________________ appellant(s)
shall pay all damages, costs, and fees which may be awarded against (him) (her) (them) (it) in the Court of Appeals and Supreme Court if it takes cognizance of the claim, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5:f-8 Bond for Costs Alone - Required by Supreme Court on Appeal of Right From State Corporation Commission.
KNOW ALL MEN BY THESE PRESENTS, That we,
______________________________________________________________, principal, and
____________________________________________________________, surety, are held
and firmly bound unto ________________________________________________________
appellee(s)
in the sum of _____________________________________________________________ to
the payment of which we bind ourselves, our heirs, successors, personal
representatives and assigns, jointly and severally, firmly by these presents.
The condition of this obligation is such that:
Whereas the Supreme Court of Virginia on the __________________________ day of
____________________, 19 ____, awarded an appeal from a final order entered in
Case No. ______________________________ under the style of ________________
by the State Corporation Commission of Virginia, on the ______________________
day of _______________________________________, 19 ____, on the condition that
_____________________________________________________________________________
appellant(s)
or someone for (him) (her) (them) (it), file an appeal bond with sufficient
security in the clerk's office of the State Corporation Commission, in the
penalty of ___________________________________________________________________
____________________________________________ within fifteen (15) days of the
date of the certificate of appeal, with condition as the law directs;
Now, therefore, if ___________________________________________________________
appellant(s)
shall pay all damages, costs, and fees which may be awarded against (him) (her) (them) (it) in the Supreme Court, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5:f-9 Bond for Costs and Suspension - Required by Supreme Court on Appeal of Right From State Corporation Commission.
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of _____________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas the Supreme Court of Virginia on the __________________________ day of ____________________, 19 ____, awarded an appeal and suspension from a final order entered in Case No. ______________________________ under the style of __ by the State Corporation Commission of Virginia, on the ______________________ day of _______________________________________, 19 ____, on the condition that ____________________________, or some one for (him) (her) (them) (it), file an appellant(s) appeal bond with sufficient security in the clerk's office of the State Corporation Commission, in the penalty of ____________________________________ within fifteen (15) days of the date of the certificate of appeal, with condition as the law directs; Now, therefore, if ___________________________________________________________ appellant(s)
shall perform and satisfy said order or the part thereof proceedings on which are stayed, in case such order or such part be affirmed in whole or in part, and shall pay all damages, costs, and fees which may be awarded against (him) (her) (them) (it) in the Supreme Court and all actual damages incurred in consequence of the suspension, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5:f-10 Form for Execution and Acknowledgment of All Bonds.
In witness whereof, the said _________________________________________________ ____________________________, principal, and _________________________________ _____________________________________________, surety, have hereunto set their hands and seals, this ________ day of __________________________, 19____. __________________________________________ (SEAL) __________________________________________ (SEAL) State of Virginia City/County of ______________________________] The foregoing instrument was acknowledged before me this _____________________ day of __________________, 19____, by ________________________________________ ___________________________________________________________________________ . __________________________________________] Notary Public My commission expires: ______________________________________________________
Rule 5:f-11 Irrevocable Letters of Credit.
(Name and Address of Bank)
______________, 19____
U.S. $____________
On all communications please refer to (No. of Letter of Credit)
(Name and address of appellee(s))
Dear ______________:
We hereby establish our Irrevocable Letter of Credit No. ____________ in your
favor, for the account of (name and address of appellant(s)), and hereby
undertake to honor your draft at sight on us, not exceeding in the aggregate
U.S. $ (amount in words) . A draft drawn under this letter of credit must
be marked 'Drawn under (Name of Bank) Letter of Credit No. , dated
______________, 19____.' Funds under this letter of credit will be available
to you in a single drawing by presentation of your sight draft drawn on us,
accompanied by:
(For Costs Alone)
1. The original of this letter of credit.
2. Your verified statement that _____________________ (has)(have) failed to
appellant(s)
pay all damages, costs and fees assessed against (him)(her)(them)(it) in the
Supreme Court of Virginia in the case of ____________________________________.
3. A certified copy of an order or itemized statement of costs from the
Supreme Court assessing such damages, costs and fees against
________________________. appellant(s)
(For Suspension Alone)
1. The original of this letter of credit.
2. Your verified statement that ______________________ (has)(have) failed to
appellant(s)
perform and satisfy the judgment rendered against (him)(her)(them)(it) on
________________________ by the Circuit Court of ________________________ in
the case of ______________________________, and (has)(have) failed to pay all
actual damages incurred in consequence of the suspension of judgment.
3. A copy of the trial court judgment order, attested by its clerk.
4. A copy of an order of the Supreme Court of Virginia, attested by its clerk,
affirming said judgment or refusing, dismissing or allowing withdrawal of the
appeal of said judgment, or certification by the clerk of the Supreme Court
that the appeal of said judgment was not prosecuted timely.
5. A copy of an order, if any, of the Supreme Court or trial court, attested
by the clerk, assessing actual damages in consequence of the suspension of
judgment.
(For Costs and Suspension)
1. The original of this letter of credit.
2. Your verified statement that ______________________ (has)(have) failed to
appellant(s)
perform and satisfy the judgment rendered against (him)(her)(them)(it) on
________________________ by the Circuit Court of ________________________ in
the case of ______________________________, and (has)(have) failed to pay all
damages, costs and fees assessed against (him)(her)(them)(it) in the Supreme
Court of Virginia, and all actual damages incurred in consequence of the
suspension of judgment.
3. A copy of the trial court judgment order, attested by its clerk.
4. A copy of an order of the Supreme Court, attested by its clerk, affirming
said judgment or refusing, dismissing or allowing withdrawal of the appeal of
said judgment, or certification by the clerk of the Supreme Court that the
appeal of said judgment was not prosecuted timely.
5. A copy of an order, if any, of the Supreme Court, attested by the clerk,
assessing damages, costs and fees against ________________________.
appellant(s)
6. A copy of an order, if any, of the Supreme Court or trial court, attested
by the clerk, assessing actual damages in consequence of the suspension of
judgment.
This letter of credit is valid until ____ p.m. local time ________, 19____,
and a draft drawn hereunder, if accompanied by documents as specified above,
will be honored if presented to (Presentation Address of Bank) on or before
that date. However, this letter of credit automatically will be renewed for
successive one (1) year periods from the initial expiration date or any
renewal period expiration date hereunder, unless at least sixty (60) days
prior to any such expiration date (Name of Bank) notifies you that it has
elected not to renew this letter of credit for such additional one (1) year
period. The notice required hereunder will be deemed to have been given when
received by you.
In the event that (Name of Bank) elects not to renew this letter of credit as
required above, the full amount of this letter of credit shall be payable to
the Clerk of the Circuit Court of __________________ upon presentation of your
verified statement that:
1. A final order of the Supreme Court of Virginia has not been entered in the
case of ________________________________________ (or, where there has been
suspension of judgment, a final order has not been entered by the Supreme
Court or trial court assessing actual damages in consequence of the
suspension).
2. Thirty (30) days have elapsed since notice of non-renewal was given and
appellant(s) (has)(have) not filed acceptable substitute security.
In the event of non-renewal, within fifteen (15) days after payment to the
clerk under the previous paragraph, the appellant(s) or someone for
(him)(her)(them)(it) shall file with said clerk an appeal bond in substantial
conformance with the appropriate form in the Appendix to Part Five of the
rule of the Supreme Court of Virginia. The bond shall be in the penalty of
the amount paid to said clerk under this letter of credit, and said funds
shall be in lieu of surety.
Except as otherwise expressly stated herein, this letter of credit is subject
to the Uniform Customs and Practice for Documentary Credits as most recently
published by the International Chamber of Commerce.
Very truly yours,
_________________________________________________________________________ Bank
By ____________________________________________________ Authorized Signature
PART FIVE A THE COURT OF APPEALS
Rule 5A:1.2 Scope, Applicability and General Provisions.
(a) Scope of rule. Part Five A governs all proceedings in the Court of Appeals of Virginia.
(1) "Appeal," "appellant," and "appellee" include "writ of error," "plaintiff in error," and "defendant in error," respectively.
(2) "Clerk of the trial court" means clerk of the trial court from which an appeal is taken to the Court of Appeals, and shall include a deputy clerk and the clerk of the Virginia Workers' Compensation Commission where the context requires.
(3) "Clerk of the Court of Appeals" includes a deputy clerk.
(4) "Counsel" has the definition given in Rule 1:5 and in this Part Five A includes a party not represented by counsel.
(5) "Counsel for appellant" means one of the attorneys representing each appellant represented by an attorney, and each appellant not represented by an attorney.
(6) "Counsel for appellee" means one of the attorneys representing each appellee represented by an attorney, and each appellee not represented by an attorney.
(7) "Opposing counsel" means, depending on the context, "counsel for the appellant" or "counsel for the appellee."
(8) "Judge" means judge of the trial court, unless the context otherwise requires, or if he be not available, any judge authorized to act under Rule 5A:9.
(9) "Judgment" includes an order or decree from which an appeal is taken.
(10) "File with the clerk" or "files with the clerk" or "filed with the clerk" means deliver to the clerk specified a paper, a copy of which has been mailed or delivered to opposing counsel, and appended to which is either acceptance of service or a certificate showing the date of mailing or delivery. "File in the office of the clerk" or "files in the office of the clerk" or "filed in the office of the clerk" means, on the other hand, deliver a paper to the clerk specified.
(11) "Trial court" means the circuit court from which an appeal is taken to the Court of Appeals.
(12) The "date of entry" of any final judgment or other appealable order or decree shall be the date the judgment, order, or decree is signed by the judge.
Rule 5A:2 Motions and Orders.
(a) Motions. All motions shall be in writing and filed with the clerk of the Court of Appeals. Opposing counsel shall have ten days after such motion is filed to file with such clerk a reply to such motion. All motions or replies shall be in quadruplicate. Carbon copies are acceptable. No motion shall be argued orally except by leave of court.
(b) Orders. Promptly after the Court of Appeals has entered an order, the clerk of the Court of Appeals shall mail or deliver a copy of the order to all counsel.
Rule 5A:3 Extension of Time.
(a) The times prescribed for filing the notice of appeal (rule 5A:6 and 5A:11), a petition for appeal (Rule 5A:12), and a petition for rehearing (Rule 5A:33), and a request for rehearing en banc (Rule 5A:34) are mandatory. The time period for filing the notice of appeal is not extended by the filing of a motion for a new trial, a petition for rehearing, or a like pleading unless the final judgment is modified, vacated, or suspended by the trial court pursuant to Rule 1:1, in which case the time for filing shall be computed from the date of the final judgment entered following such modification, vacation, or suspension.
(b) Except as provided in subsection (a) of this Rule , the times prescribed in these rule for filing papers, except transcripts (Rule 5A:8 (a)), may be extended by a judge of the court in which the papers are to be filed on motion for good cause shown and to attain the ends of justice.
(c) Any document required to be filed with the clerk of the Court of Appeals, or filed in the office of the clerk of the Court of Appeals, shall be deemed to be timely filed if it is mailed postage prepaid to the clerk of the Court of Appeals by registered or certified mail and if the official receipt therefor be exhibited upon demand of the clerk or any party and it shows mailing within the prescribed time limits. This Rule does not apply to documents to be filed in the office of the clerk of the trial court or clerk of the Virginia Workers' Compensation Commission.
Rule 5A:4 Forms of Briefs and Other Papers.
(a) Briefs, appendices, motions, petitions, and other papers may be printed, typewritten, or prepared by a mechanical duplication process. All such papers shall be produced on pages 8-1/2 x 11 inches; printed matter shall occupy approximately 5 by 8 inches of a page, and typewritten matter shall occupy approximately 6 by 9 inches. All printed matter must be in at least 11 point type. Typed papers shall not be reduced, and must be double-spaced except for quotations and footnotes. Carbon copies are prohibited except where specifically authorized by these rule, and otherwise only by permission of a judge of the Court of Appeals.
(b) All briefs and appendices shall be bound on the left margin in such a manner as to produce a flat, smooth binding. Spiral binding, acco fasteners, and the like are not acceptable. The caption (with the name of the appellant stated first) and the record number of the case and the names and addresses of counsel submitting the paper shall be placed on the front cover.
(c) No appeal shall be dismissed for failure to comply with the provisions of this Rule ; however, the clerk of the Court of Appeals may require that a document be redone in compliance with this Rule .
Rule 5A:5 B. Original Jurisdiction.
Rule 5A:5.1 Original Proceedings.
All proceedings before the Court of Appeals pursuant to its original jurisdiction shall be conducted in accordance with the procedure prescribed by Rule 5:7 of the rule of the Supreme Court; however, in cases brought by prisoners pro se, no responsive pleading shall be required except as ordered by the court. If a responsive pleading is ordered, four copies shall be filed.
Rule 5A:6 C. Procedure for Filing an Appeal in all Cases From the Trial Court.
Rule 5A:6.1 Notice of Appeal.
(a) Timeliness. No appeal shall be allowed unless, within 30 days after entry of final judgment or other appealable order or decree, counsel files with the clerk of the trial court a notice of appeal, and at the same time mails or delivers a copy of such notice to all opposing counsel and the clerk of the Court of Appeals. A party filing a notice of an appeal of right to the Court of Appeals shall simultaneously file in the trial court an appeal bond in compliance with Code §/n 8.01-676.1.
(b) Content. The notice of appeal shall contain a statement whether any transcript or statement of facts, testimony, and other incidents of the case will be filed.
(c) Filing Fee. A copy of the notice of appeal shall be filed in the office of the clerk of the Court of Appeals and, except as otherwise provided by law, must be accompanied by a check or money order in the amount of $25 payable to the clerk of the Court of Appeals. The fee shall be due at the time the notice of appeal is presented. The clerk of the Court of Appeals may file any notice of appeal that is not accompanied by such fee if the fee is received by the clerk within ten days of the date the notice of appeal is filed. If the fee is not received within such time, the appeal shall be dismissed.
(d) Certificate. The appellant shall include with the notice of appeal a certificate stating:
(1) the names and addresses of all appellants and appellees, the names, addresses, and telephone numbers of counsel for each party, and the address and telephone number of any party not represented by counsel; and
(2) that a copy of the notice of appeal has been mailed or delivered to all opposing counsel; and
(3) in a criminal case, a statement whether counsel for defendant has been appointed or privately retained; and
(4) that in the event a transcript is to be filed a copy of the transcript has been ordered from the court reporter who reported the case.
(e) Separate Cases. Whenever two or more cases were tried together in the trial court, one notice of appeal and one record may be used to bring all of such cases before the Court of Appeals even though such cases were not consolidated by formal order.
Form NOTICE OF APPEAL FROM TRIAL COURT (Rule 5A:6) VIRGINIA: IN THE CIRCUIT COURT OF ____________________________________________ (The style of the case in the Circuit Court shall be used.) NOTICE OF APPEAL ____________________________________, ___________________ (name(s) of party(ies)) (plaintiff, defendant or other ________ hereby appeals to the Court of Appeals of designation in trial court) Virginia from the ___________________________________________________________ (final judgment or other appealable order or decree) of this Court entered on ______________. (date) [If applicable] A transcript or statement of facts, testimony, and other incidents of the case will be filed. CERTIFICATE The undersigned certifies as follows: (1) The name(s) and address(es) of appellant(s) are: (2) The name(s), address(es), and telephone number(s) of counsel for appellant(s) are: (3) The name(s) and address(es) of appellee(s) are: (4) The name(s), address(es), and telephone number(s) of counsel for appellee(s) are: (5) [If applicable] Counsel for appellant has ordered from the court reporter who reported the case the transcript for filing as required by Rule 5A:8(a). (6) [If applicable] ____________________________, (name of party) (appellant) __________________, is not represented by counsel. __ (appellee) (his) (her) address and telephone number are: (7) [In criminal cases only] Counsel for defendant has been __________________ ________________________________________. (appointed) (privately retained) (8) A copy of this Notice of Appeal has been mailed or delivered to all opposing counsel [and/r to unrepresented parties, if applicable] and to the Clerk of the Court of Appeals this ______ day of _____________, 19____.] ____________________________________________ (Signature of counsel or unrepresented party)
Rule 5A:7 Record on Appeal: Contents.
(a) Contents. The following constitute the record on appeal from the trial court:
(1) the original papers and exhibits filed or lodged in the office of the clerk of the trial court, including any report of a commissioner in chancery and the accompanying depositions and other papers;
(2) each instruction marked "given" or "refused" and initialed by the judge;
(3) each exhibit offered in evidence, whether admitted or not, and initialed by the trial judge (or any photograph thereof as authorized by §19.2-270.4 (A) and (C)). (All non-documentary exhibits shall be tagged or labeled in the trial court and the tag or label initialed by the judge.);
(4) the original draft or a copy of each order entered by the trial court;
(5) any opinion or memorandum decision rendered by the judge of the trial court;
(6) any deposition and any discovery material encompassed within Part Four offered in evidence (whether admitted or rejected) at any proceeding; and
(7) the transcript of any proceeding or a written statement of facts, testimony, and other incidents of the case when made a part of the record as provided in Rule 5A:8, or the official videotape recording of any proceeding in those circuit courts authorized by the Supreme Court to use videotape recordings. The Court of Appeals may require that any videotape proceedings be transcribed, in whole or in part, and made a part of the record as provided in Rule 5A:8, except that the transcript shall be filed within 60 days after the entry of the order requiring such transcript; and
(8) the notice of appeal.
(b) Disagreement on Contents. If disagreement arises as to the contents of any part of the record, the matter shall be submitted to and decided by the trial court.
Rule 5A:8 Record on Appeal: Transcript or Written Statement.
(a) Transcript. The transcript of any proceeding is a part of the record when it is filed in the office of the clerk of the trial court within 60 days after entry of the final judgment. Upon a written motion filed within 60 days after entry of the final judgment, a judge of the Court of Appeals may extend this time for good cause shown. The mailing provisions of Rule 5A:3(c) shall not apply to motions made pursuant to this paragraph.
(b) Notice. Within ten days after the transcript is filed or, if the transcript is filed prior to the filing of the notice of appeal, within ten days after the notice of appeal is filed, counsel for appellant shall (1) give written notice to all other counsel of the date on which the transcript was filed, and (2) file a copy of the notice with the clerk of the trial court. There shall be appended to the notice either a certificate of counsel for appellant that a copy of the notice has been mailed to all other counsel or an acceptance of service of such notice by all other counsel.
When multiple transcripts are filed, the ten-day period for filing the notice required by this Rule shall be calculated from the date on which the last transcript is filed or from the date on which the notice of appeal is filed, whichever is later. The notice of filing transcripts shall identify all transcripts filed and the date upon which the last transcript was filed.
If the notice of appeal states that no additional transcripts will be filed and identifies the transcripts that have been filed, if any, then no additional written notice of filing transcripts is required and the notice of appeal will serve as the notice of filing transcripts for purposes of Rule 5A:8(b).
Any failure to file the notice required by this Rule that materially prejudices an appellee will result in the affected transcripts being stricken from the record on appeal. For purposes of this Rule , material prejudice includes preventing the appellee from raising legitimate objections to the contents of the transcript or misleading the appellee about the contents of the record. The appellee shall have the burden of establishing such prejudice in the brief in opposition or, if no brief in opposition is filed, in a written statement filed with the clerk of the Court of Appeals within twenty-one days after the record is received by the clerk.
When the appellant fails to ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by such omission shall not be considered.
(c) Written Statement. In lieu of a transcript, a written statement of facts, testimony, and other incidents of the case, which may include or consist of a portion of the transcript, becomes a part of the record when:
(1) within 55 days after entry of judgment a copy of such statement is filed in the office of the clerk of the trial court. A copy must be mailed or delivered to opposing counsel accompanied by notice that such statement will be presented to the trial judge no earlier than 15 days nor later than 20 days after such filing; and
(2) the statement is signed by the trial judge and filed in the office of the clerk of the trial court. The judge may sign the statement forthwith upon its presentation to him if it is signed by counsel for all parties, but if objection is made to the accuracy or completeness of the statement, it shall be signed in accordance with subsection (d) of this Rule .
(d) Objections. Any party may object to a transcript or written statement on the ground that it is erroneous or incomplete. Notice of such objection specifying the errors alleged or deficiencies asserted shall be filed with the clerk of the trial court within 15 days after the date the notice of filing the transcript (subsection (b) of this Rule ) or within 15 days after the date the notice of filing the written statement (subsection (c) of this Rule ) is filed in the office of the clerk of the trial court or, if the transcript or written statement is filed before the notice of appeal is filed, within 10 days after the notice of appeal has been filed with the clerk of the trial court. The clerk shall give prompt notice of the filing of such objections to the trial judge. Within ten days after the notice of objection is filed with the clerk of the trial court, the judge shall:
(1) overRule the objection; or
(2) make any corrections that he deems necessary; or
(3) include any accurate additions to make the record complete; or
(4) certify the manner in which the record is incomplete; and
(5) sign the transcript or written statement.
At any time while the record remains in the office of the clerk of the trial court, the trial judge may, after notice to counsel and hearing, correct the transcript or written statement.
The judge's signature on a transcript or written statement, without more, shall constitute his certification that the procedural requirements of this Rule 5A:8 have been satisfied.
Rule 5A:9 Judge Authorized to Act.
The judge authorized to act in all matters relating to the record on appeal shall be any judge having authority to enter orders in the case or in the court in which the case was heard or, in a case heard by three judges, any one of them.
Rule 5A:10 Record on Appeal: Preparation and Transmission.
(a) Preparation. The clerk of the trial court shall prepare the record as soon as possible after notice of appeal is filed. In the event of multiple appeals in the same case, or in cases tried together, only one record need be prepared and transmitted.
(1) The record shall be compiled in the following order:
(a) a front cover setting forth the name of the court and the short style of the case;
(b) a table of contents listing each paper included in the record and the page on which it begins;
(c) each paper constituting a part of the record in chronological order; and
(d) the certificate of the clerk of the trial court that the foregoing constitutes the true and complete record, except omitted exhibits as hereinafter provided.
(2) Each page of the record shall be numbered at the bottom.
(3) Transcripts, depositions, and reports of commissioners may be included in separate volumes identified by the clerk of the trial court if referred to in the table of contents and at the appropriate place in the record.
(4) Exhibits, other than those filed with pleadings, may be included in a separate volume or envelope certified by the clerk of the trial court, except that any exhibit that cannot be conveniently placed in a volume or envelope shall be identified by a tag. Each such volume or envelope shall include, on its cover or inside, a descriptive list of exhibits contained therein. Reference shall be made to exhibits in the table of contents and at the appropriate place in the record referred to in paragraph (1). Exhibits of unusual character, bulk, or weight may, at the option of the clerk of the trial court, and after written notice to all counsel, not be transmitted unless he is directed to do so by counsel or by the clerk of the Court of Appeals. Counsel must make advance arrangements for the transportation and receipt of exhibits of unusual character, bulk, or weight.
(5) Any transcript or statement that the clerk of the trial court deems not a part of the record because of untimely filing shall be certified by him as such and transmitted with the record.
(c) Abbreviated Record. When the questions presented by an appeal can be determined without examination of all the pleadings, facts, testimony, and other incidents of the case, all counsel with the approval of the trial court may prepare for submission an abbreviated record, stating how the questions in the case arose and were decided, and setting forth only so much of the pleadings, facts, testimony, and other incidents of the case as are essential to a determination of the issues on appeal. Such abbreviated record shall be signed by all counsel and the trial judge and filed in the office of the clerk of the trial court. It will be assumed that the abbreviated record contains everything germane to the questions presented. The Court of Appeals may, however, consider other parts of the record to enable the Court to attain the ends of justice.
(d) Transmission. The clerk of the trial court shall retain the record for 21 days after the notice of appeal has been filed with him pursuant to Rule 5A:6. If the notice of appeal states that a transcript or statement will thereafter be filed, the clerk of the trial court shall retain the record for 21 days after the filing in his office of such transcript or statement or, if objection is made to the transcript or statement pursuant to Rule 5A:8 (d), the clerk of the trial court shall retain the record for five days after the objection is acted upon by the trial judge. The clerk of the trial court shall then forthwith transmit the record to the clerk of the Court of Appeals; provided, however, that, notwithstanding that the foregoing periods of retention may not have expired, the clerk of the trial court shall transmit the record sooner if requested in writing by counsel for all parties to the appeal and shall, whether or not so requested, transmit the record in time for delivery to the clerk of the Court of Appeals within three months after entry of the judgment appealed from. The failure of the clerk of the trial court to transmit the record as herein provided shall not be a ground for dismissal of the appeal by the Court of Appeals.
(e) Notice of Filing. The clerk of the Court of Appeals shall promptly notify all counsel of the date on which the record is filed in the office of the clerk of the Court of Appeals.
(f) Disposition of Record. When the mandate is issued by the Court of Appeals, the clerk of the Court of Appeals shall return the record to the clerk of the trial court or commission in which the proceeding originated. The record shall be returned by that clerk upon the request of the clerk of the Court of Appeals.
Rule 5A:11 D. Procedure for Filing an Appeal From the Workers' Compensation Commission.
Rule 5A:11.1 Special Rule Applicable to Appeals From the Virginia Workers' Compensation Commission.
(a) Non-Application of Other Rules. Rules 5A:6 through 5A:10 do not apply to appeals from the Virginia Workers' Compensation Commission except as otherwise specified in this Part Five A.
(b) Notice of Appeal. No appeal from an order of the Commission shall be allowed unless, within 30 days after entry of the order appealed from, or within 30 days after receipt of notice by registered mail of the order appealed from, counsel files with the clerk of the Virginia Workers' Compensation Commission a notice of appeal which shall state the names and addresses of all appellants and appellees, the names, addresses, and telephone numbers of counsel for each party, and the address and telephone number of any party not represented by counsel, and whether the appellant challenges the sufficiency of the evidence to support the findings of the Commission. A copy of the notice of appeal shall be filed in the office of the Clerk of the Court of Appeals, and except as otherwise provided by law, and must be accompanied by a check or money order in the amount of $25 payable to the clerk of the Court of Appeals. The fee shall be due at the time the notice of appeal is presented. The clerk of the Court of Appeals may file any notice of appeal that is not accompanied by such fee if the fee is received by the clerk within ten days of the date the notice of appeal is filed. If the fee is not received within such time, the appeal shall be dismissed.
(c) Record on Appeal. The record on appeal from the Commission shall consist of the originals or copies of the notice of appeal, the employer's first report, medical reports, applications for hearings, the transcript of any hearing, depositions, interrogatories and answer to interrogatories, and opinions of a commissioner or deputy commissioner and opinions of the Commission, together with such other material as may be certified by the clerk of the Commission and shall conform as nearly as practicable to the requirements of Rule 5A:10 (b), provided, that, unless it is stated in the notice of appeal that the appellant challenges the sufficiency of the evidence to support the findings of the Commission, the clerk of the Commission need not prepare or certify the transcript of any hearing.
(d) Transmission of Record. The record shall, as soon as it is certified by the clerk of the Commission, be transmitted by him to the clerk of the Court of Appeals. It shall be so transmitted within 30 days after filing of the notice of appeal.
(e) Notice of Filing. The clerk of the Court of Appeals shall promptly notify all counsel of the date on which the record is filed in the office of the clerk of the Court of Appeals.
(f) Separate Cases. Whenever two or more cases were tried together in the Virginia Workers' Compensation Commission, one notice of appeal and one record may be used to bring all such cases before the Court of Appeals even though such cases were not consolidated by formal order.
(g) Record Returned to Commission. When the mandate is issued by the Court of Appeals, the clerk of the Court of Appeals shall return the record to the clerk of the Commission. The clerk of the Commission shall return the record upon request of the clerk of the Court of Appeals.
Rule 5A:12 E. Procedure on Petition for Appeal in Criminal Cases and Traffic Infractions.
Rule 5A:12.1 Petition for Appeal.
(a) When Required. When an appeal to the Court of Appeals does not lie as a matter of right, a petition for appeal must be filed with the clerk of the Court of Appeals not more than 40 days after the filing of the record with the Court of Appeals. An extension of 30 days may be granted on motion in the discretion of the Court of Appeals in order to attain the ends of justice. Four copies shall be filed. Carbon copies are acceptable.
(b) Copy to Opposing Counsel. At the time the petition for appeal is filed, a copy of the petition shall be mailed or delivered to counsel for the appellee. A copy of the petition shall be mailed or delivered to the Commonwealth's attorney or the city, county, or town attorney, as the case may be.
(c) Form and Content. The petition for appeal shall contain the questions presented. The form and contents of the petition for appeal shall conform in all respects to the requirements of the opening brief of appellant (Rule 5A:20). Except by leave of a judge of the Court of Appeals, a petition for appeal shall not exceed 35 typed or 25 printed pages. The provisions of Rule 5A:18 shall apply to limit those questions which the Court of Appeals will Rule upon on appeal. Only questions presented in the petition for appeal will be noticed by the Court of Appeals. Appellant shall include at the end of the petition for appeal a certificate stating the date of mailing or delivery of the petition to opposing counsel and whether or not he desires to state orally the reasons his petition for appeal should be granted.
(d) Single Petition in Separate Cases. Whenever two or more cases were tried together in the court or commission below, one petition for appeal may be used to bring all such cases before the Court of Appeals even though the cases were not consolidated below by formal order.
(e) Oral Argument. When the appeal is not granted by the judge of the Court of Appeals to whom the petition for appeal is originally presented, the petitioner shall be entitled to state orally, in person or by conference telephone call, to a panel of the Court of Appeals the reasons his petition for appeal should be granted. The appellant may waive the right to oral argument on the petition for appeal before a panel by notifying the clerk of the Court of Appeals and opposing counsel in writing, or by filing a reply brief.
Rule 5A:13 Brief in Opposition.
(a) Filing Time. A brief in opposition to granting the appeal may be filed with the clerk of the Court of Appeals by the appellee within 21 days after the petition for appeal is served on counsel for the appellee. Within the same time he shall mail or deliver a copy to counsel for appellant. Four copies shall be filed. Carbon copies are acceptable.
(b) Form and Content. The brief in opposition shall conform in all respects to the requirements of the brief of appellee (Rule 5A:21). Except by leave of a judge of the Court of Appeals, the brief shall not exceed 25 typed or 20 printed pages. If the brief exceeds 10 pages, it shall contain a subject index and table of citations with cases alphabetically arranged. In a criminal case, a brief shall be filed by the Commonwealth's attorney, city, county, or town attorney, as the case may be.
(c) Expedited Review. When it clearly appears that an appeal ought to be granted without further delay, an appeal may be granted before the filing of the brief in opposition.
Rule 5A:14 Reply Brief.
When a brief in opposition to the petition for appeal has been filed, the appellant may, within 14 days thereafter, in lieu of oral argument, file with the clerk of the Court of Appeals a reply brief not to exceed 15 typed or printed pages in length. Four copies shall be filed. Carbon copies are acceptable.
Rule 5A:15 Denial of Appeal; Petition for Rehearing.
(a) When a petition for appeal is denied by a judge of the Court of Appeals pursuant to Code §17.1-407 (C), the clerk of the Court of Appeals shall mail a copy of the order denying the petition to counsel for the appellant and counsel for the appellee. The petitioner may demand consideration of the petition by a three-judge panel pursuant to Code §17.1-407 (D). The demand shall be filed in writing and in quadruplicate with the clerk of the Court of Appeals within fourteen days after the date of the order by which the petition was denied. No new petition or briefs may be filed. Oral argument shall not be permitted on consideration of a petition by a three-judge panel unless oral argument was asked in the petition for appeal pursuant to Rule 5A:12(c). A petitioner who has previously so asked for oral argument may waive oral argument by so stating in the demand for review.
(b) When a petition for appeal is denied by a three-judge panel, the clerk of the Court of Appeals shall mail a copy of the order or memorandum opinion denying the appeal to counsel for the appellant and counsel for the appellee. Counsel for the appellant may, within 14 days after the date of this notice, file a petition for rehearing in the office of the clerk of the Court of Appeals unless the denial was by a three-judge panel after its consideration of a petition denied by a judge of the Court pursuant to Code §17.1-407. The petition shall state that a copy has been mailed or delivered to counsel for the appellee. Four copies shall be filed. Carbon copies are acceptable. Oral argument on the petition for rehearing will not be allowed. The petition for rehearing shall be referred to the panel of the Court of Appeals that considered the petition for appeal. No responsive brief shall be filed unless requested by the Court of Appeals. The clerk of the Court of Appeals shall notify counsel for the appellant and counsel for the appellee of the action taken by the Court of Appeals on the petition for rehearing.
Rule 5A:16 F. Procedure Following Perfection of Appeal.
Rule 5A:16.1 Perfection of Appeal; Docketing.
(a) Appeals as a Matter of Right. In cases where an appeal lies as a matter of right to the Court of Appeals, such appeal shall be perfected by the timely filing of a notice of appeal pursuant to Rule 5A:6. Such case shall be considered mature for purposes of further proceedings from the date the record is filed in the office of the clerk of the Court of Appeals. A party filing a notice of an appeal of right to the Court of Appeals shall simultaneously file in the trial court an appeal bond in compliance with Code § 8.01-676.1.
(b) Grant of Petition for Appeal. Promptly after a petition for appeal has been granted by the Court of Appeals, the clerk of the Court of Appeals shall certify this action to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate.
(c) Docketing. Cases shall be placed on the docket in the order in which they mature, provided that precedence shall be given to the following cases:
(1) criminal cases;
(2) cases from the Virginia Workers' Compensation Commission;
(3) cases of original jurisdiction;
(4) cases to be reheard; and
(5) any other cases required by statute to be given precedence.
The Court of Appeals may, however, for good cause shown or for reasons appearing sufficient to the Court, give preference to other cases.
Rule 5A:17 Security for Appeal.
(a) All security for appeal required under Code §8.01-676.1 shall substantially conform to the forms set forth in the Appendix to this Part Five A.
(b) Security for Appeal; Defects. Whenever an appellant files an appeal bond or irrevocable letter of credit, he shall contemporaneously give notice in writing of said filing to counsel for appellee. No appeal shall be dismissed because of defect in any bond or irrevocable letter of credit unless an appellee, within 21 days after the giving of such notice, files with the clerk of the Court of Appeals a statement in writing of the defects in the bond or irrevocable letter of credit, and unless the appellant fails to correct such defects, if any, within 21 days after such statement is filed. If the appellant fails to correct such defects within 21 days, an appellee may move that the appeal be dismissed and it shall be dismissed unless the appellant satisfies the Court of Appeals that the bond or irrevocable letter of credit, either as originally given or as amended, has been filed as required by law.
Rule 5A:18 Questions to Be Considered.
No ruling of the trial court or the Virginia Workers' Compensation Commission will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to constitute a question to be Rule d upon on appeal.
Rule 5A:19 Briefs.
(a) Length. Except by permission of a judge of the Court of Appeals, neither the opening brief of appellant, nor the brief of appellee, nor a brief amicus curiae shall exceed 35 typed or 25 printed pages. No reply brief shall exceed 10 typed or 7 printed pages. Page limits under this Rule do not include appendices.
(b) Filing Time: Appeal as a Matter of Right. In cases where appeal lies as a matter of right to the Court of Appeals, briefs shall be filed as follows:
(1) The appellant shall file the opening brief in the office of the clerk of the Court of Appeals within 40 days after the date of the filing of the record in such office.
(2) The brief of appellee shall be filed in the office of the clerk of the Court of Appeals within 25 days after filing of the opening brief.
(3) The appellant may file a reply brief in the office of the clerk of the Court of Appeals within 14 days after filing of the brief of appellee.
(c) Filing Time: Grant of Petition for Appeal. In cases where a petition for appeal has been granted by the Court of Appeals, briefs shall be filed as follows:
(1) The appellant shall file the opening brief in the office of the clerk of the Court of Appeals within 40 days after the date of the certificate of appeal issued by the clerk of the Court of Appeals pursuant to Rule 5A:16 (b).
(2) The brief of appellee shall be filed in the office of the clerk of the Court of Appeals within 25 days after filing of the opening brief.
(3) The appellant may file a reply brief in the office of the clerk of the Court of Appeals within 14 days after filing of the brief of appellee.
(d) Extension of Time. By agreement of all counsel and with permission of a judge of the Court of Appeals, the time for filing any brief in the Court of Appeals may be altered.
(e) Copies. Seven copies of each brief shall be filed and three copies shall be mailed or delivered to opposing counsel on or before the date of filing.
Rule 5A:20 Opening Brief of Appellant.
The opening brief of appellant shall contain:
(a) A subject index and table of citations with cases alphabetically arranged. Citations of Virginia cases shall be to the Virginia Reports and the Southeastern Reporter. Citations of all authorities shall include the year thereof.
(b) A brief statement of the nature of the case and of the material proceedings in the trial court, which shall omit references to any paper filed or action taken that does not relate to the questions presented.
(c) A statement of the questions presented with a clear and exact reference to the page(s) of the transcript, written statement, record, or appendix where each question was preserved in the trial court.
(d) A clear and concise statement of the facts that relate to the questions presented, with references to the pages of the transcript, written statement, record, or appendix. Any quotation from the record should be brief. When the facts are in dispute, the brief shall so state. The testimony of individual witnesses should not be summarized seriatim unless the facts are in dispute and such a summary is necessary to support the appellant's version of the facts.
(e) The principles of law, the argument, and the authorities relating to each question presented. Where the question was not preserved in the trial court, counsel shall state why the good cause and/or ends of justice exceptions to Rule 5A:18 are applicable. With respect to each question, the principles, the argument, and the authorities shall be stated in one place and not scattered through the brief. At the option of counsel, the argument may be preceded by a brief summary.
(f) A short conclusion stating the precise relief sought.
(g) The signature (which need not be in handwriting) of at least one counsel and his address.
(h) A certificate (which need not be signed in handwriting) stating (1) that Rule 5A:19(e) has been complied with, and (2) whether counsel desires to waive oral argument. Additionally, any party may waive oral argument without leave of court by written notification to the clerk of this court within 21 days after the date on which the appellee's brief is due to be filed or has been filed.
Rule 5A:21 Brief of Appellee.
The brief of appellee shall contain:
(a) A subject index and table of citations with cases alphabetically arranged. Citations of Virginia cases shall be to the Virginia Reports and the Southeastern Reporter. Citations of all authorities shall include the year thereof.
(b) A statement of the case and of the questions presented if the appellee disagrees with the statement or questions presented by the appellant, and a statement of any additional questions the appellee wishes to present with a clear and exact reference to the page(s) of the transcript, written statement, record, or appendix where each additional question was preserved in the trial court.
(c) A statement of the facts necessary to correct or amplify the statement in the brief of appellant with appropriate references to the pages of the transcript, written statement, record, or appendix. The testimony of individual witnesses should not be summarized seriatim unless the facts are in dispute and such a summary is necessary to support the appellee's version of the facts.
(d) The principles of law, the argument, and the authorities relating to each question presented. For any additional question presented by appellee which was not preserved in the trial court, counsel shall state why the good cause and/or ends of justice exceptions to Rule 5A:18 are applicable. With respect to each question, the principles, the argument, and the authorities shall be stated in one place and not scattered through the brief. At the option of counsel, the argument may be preceded by a brief summary.
(e) A statement of the precise relief sought, if any.
(f) The signature (which need not be in handwriting) of at least one counsel and his address.
(g) A certificate (which need not be signed in handwriting) stating (1) that Rule 5A:19(e) has been complied with, and (2) whether counsel desires to waive oral argument. Additionally, any party may waive oral argument without leave of court by written notification to the clerk of this court within 21 days after the date on which the appellee's brief is due to be filed or has been filed.
Rule 5A:21 Brief of Appellee.
The brief of appellee shall contain:
(a) A subject index and table of citations with cases alphabetically arranged. Citations of Virginia cases shall be to the Virginia Reports and the Southeastern Reporter. Citations of all authorities shall include the year thereof.
(b) A statement of the case and of the questions presented if the appellee disagrees with the statement or questions presented by the appellant, and a statement of any additional questions the appellee wishes to present with a clear and exact reference to the page(s) of the transcript, written statement, record, or appendix where each additional question was preserved in the trial court.
(c) A statement of the facts necessary to correct or amplify the statement in the brief of appellant with appropriate references to the pages of the transcript, written statement, record, or appendix. The testimony of individual witnesses should not be summarized seriatim unless the facts are in dispute and such a summary is necessary to support the appellee's version of the facts.
(d) The principles of law, the argument, and the authorities relating to each question presented. For any additional question presented by appellee which was not preserved in the trial court, counsel shall state why the good cause and/or ends of justice exceptions to Rule 5A:18 are applicable. With repsect to each question, the principles, the argument, and the authorities shall be stated in one place and not scattered through the brief. At the option of counsel, the argument may be preceded by a brief summary.
(e) A statement of the precise relief sought, if any.
(f) The signature (which need not be in handwriting) of at least one counsel and his address.
(g) A certificate (which need not be signed in handwriting) stating (1) that Rule 5A:19(e) has been complied with, and (2) whether counsel desires to waive oral argument. Additionally, any party may waive oral argument without leave of court by written notification to the clerk of this court within 21 days after the date on which the appellee's brief is due to be filed or has been filed.
Rule 5A:22 Reply Brief.
The reply brief, if any, shall contain argument in reply to contentions made in the brief of appellee. No reply brief is necessary if the contentions have been adequately answered in the opening brief of appellant. The reply brief shall contain a certificate (which need not be signed in handwriting) that Rule 5A:19 (e) has been complied with.
Rule 5A:23 Briefs Amicus Curiae.
(a) A brief amicus curiae may be filed:
(1) on behalf of the United States or the Commonwealth of Virginia without the prior consent of the Court of Appeals or counsel;
(2) by any other person if it is accompanied by the written consent of all counsel; or
(3) otherwise only on motion (which may be accompanied by the proposed brief) and the consent of the Court of Appeals.
(b) A brief amicus curiae will be accepted only if filed on or before the date on which the brief of the party supported is required to be filed. A brief amicus curiae may be filed at the time of filing of the reply brief of the appellant only if an opening brief amicus curiae has been filed.
(c) A brief amicus curiae shall comply with the rule applicable to the brief of the party supported.
(d) Notwithstanding the provisions of paragraph (b), the Court of Appeals may request that a brief amicus curiae be filed at any time.
Rule 5A:24 Covers of Documents.
(a) To facilitate identification, documents shall bear covers colored as follows:
Document Color of Cover Appendix Red Brief of the Appellant White Brief of the Appellee Blue Reply Brief of the Appellant Green Brief Amicus Gray Petition for Rehearing Yellow
(b) No appeal shall be dismissed for failure to comply with the provisions of this Rule .
Rule 5A:25 Appendix.
(a) When Required. An appendix shall be filed by the appellant in all cases no later than the time of filing his opening brief.
(b) Filing. If the combined lengths of the appendix and the opening brief of the appellant do not exceed the limitation prescribed in Rule 5A:19, the appendix may be filed as an addendum to the opening brief and within the same cover. If the combined lengths of the appendix and the opening brief exceed the limitation prescribed in Rule 5A:19, the appellant shall file the appendix as a separate volume. The number of copies filed and mailed to opposing counsel shall conform to Rule 5A:19(e).
(c) Contents. An appendix shall include:
(1) the basic initial pleading (as finally amended);
(2) the judgment appealed from, and any memorandum or opinion relating thereto;
(3) any testimony and other incidents of the case germane to the questions presented;
(4) the title (but not the caption) of each paper contained in the appendix, and its filing date;
(5) the names of witnesses printed at the beginning of excerpts from their testimony and at the top of each page thereof; and
(6) exhibits necessary for an understanding of the case that can reasonably be reproduced.
(d) Determination of Contents. Within ten days after the filing of the record with the Court of Appeals or, in a case where a petition for appeal has been granted, within ten days after the date of the certificate of appeal issued by the clerk of the Court of Appeals, counsel for appellant shall file in the office of the clerk of the Court of Appeals a written statement signed by all counsel setting forth an agreed designation of the parts of the record to be included in the appendix. In the absence of such an agreement, counsel for appellant shall file with the clerk of the Court of Appeals a statement of the questions to be presented and a designation of the contents to be included in the appendix within fifteen days after the filing of the record or, in a case where a petition for appeal has been granted, within fifteen days after the date of the certificate of appeal; not more than ten days after this designation is filed, counsel for appellee shall file with the clerk of the Court of Appeals a designation of any additional contents to be included in the appendix. The appellant shall include in the appendix the parts thus designated, together with any additional parts he considers germane.
(e) Table of Contents; Form of Presentation. At the beginning of the appendix there shall be a table of contents, which shall include the name of each witness whose testimony is included in the appendix and the page number of the appendix at which each portion of the testimony of the witness begins. Thereafter, the parts of the record to be reproduced shall be set out in chronological order. When matter contained in the transcript of proceedings is set out in the appendix, the page of the transcript or of the record at which such matter may be found shall be indicated in brackets immediately before the matter which is set out. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial matters (such as captions, subscriptions and acknowledgements) shall be omitted. A question and its answer may be contained in a single paragraph.
(f) Costs. Unless counsel otherwise agree, the cost of producing the appendix shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determination of the issue presented, he may so advise the appellee, and the appellee shall advance the cost of including such parts. The cost of producing the appendix shall be taxed as costs in the case.
(g) Penalty. Nothing shall be included in the appendix that is not germane to a question presented. As examples, no pleadings (other than the basic initial pleading as finally amended) shall be included unless a question is presented relating to it, and then only the portion thereof to which the assignment relates; and testimony relating solely to the amount of damages shall not be included unless error is assigned relating to the amount of damages. If parts of the record are included in the appendix unnecessarily at the direction of a party, the Court of Appeals may impose the cost of producing such parts on that party.
(h) Assumptions. It will be assumed that the appendix contains everything germane to the questions presented. The Court of Appeals may, however, consider other parts of the record.
Rule 5A:26 Effect of Noncompliance With rule Regarding Briefs.
If neither party has filed a brief in compliance with these rule, the Court of Appeals may dismiss the appeal. If one party has but the other has not filed such a brief, the party in default will not be heard orally, except for good cause shown.
Rule 5A:27 Summary Disposition.
In cases in which appeal lies as a matter of right, if all the judges of the panel of the Court of Appeals to which a pending appeal has been referred conclude from a review of the record and the briefs of the parties that the appeal is without merit, the panel shall forthwith affirm the judgment of the trial court or commission.
Rule 5A:28 Oral Argument.
(a) Notice. Whenever appeal lies as a matter of right or a petition for appeal has been granted, oral argument shall be permitted except in those cases disposed of pursuant to Rule 5A:27. The Clerk of the Court of Appeals, except in extraordinary circumstances, shall give at least 15 days advance notice to counsel of the date, time, and place for oral argument.
(b) Length. Except as otherwise directed by the Court of Appeals, argument for a party shall not exceed 30 minutes in length. Such time may be apportioned among counsel for the same side at their discretion, except that only one counsel may present the opening argument for the appellant.
(c) Amicus Curiae. No oral argument is permitted by amicus curiae except by leave of the Court of Appeals.
(d) Waiver. Any party may waive oral argument. See rule 5A:20(h) and 5A:21(g).
Rule 5A:29 G. Decision, Costs, and Mandate.
Rule 5A:29.1 Notice of Decision.
Promptly after the Court of Appeals has decided a case, the clerk of the Court of Appeals shall mail or deliver a copy of the decision to all counsel and to the judge of the trial court or members of the Virginia Workers' Compensation Commission.
Rule 5A:30 Costs.
(a) To Whom Allowed. Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the Court of Appeals; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; if a judgment is affirmed in part or reversed in part, or is vacated, costs shall be allowed as ordered by the Court of Appeals.
(b) Taxable Costs. Costs, including the filing fee and costs incurred in the printing or producing of necessary copies of briefs, appendices, and petitions for rehearing, shall be taxable in the Court of Appeals.
(c) Award. Counsel for a party who desires costs to be taxed shall itemize them in a verified bill of costs, which shall be filed with the clerk of the Court of Appeals within ten days after the date of the decision in the case. Objections to the bill of costs must be filed with the clerk of the Court of Appeals within 14 days after the date of filing the bill of costs. The clerk of the Court of Appeals shall prepare and certify an itemized statement of costs taxed in such Court for insertion in the mandate, but the issuance of the mandate shall not be delayed for taxation of costs. If the mandate has been issued before final determination of costs, the statement, or any amendment thereof, shall be added to the mandate on request by the clerk of the Court of Appeals to the clerk of the trial court or the clerk of the Virginia Workers' Compensation Commission.
Rule 5A:31 Mandate.
(a) Time. When there can be no further proceedings in the Court of Appeals or in the Supreme Court with respect to a decision of the Court of Appeals, the clerk of the Court of Appeals shall forward its mandate promptly to the clerk of the trial court or the clerk of the Virginia Workers' Compensation Commission.
(b) Opinions. If the judgment or order is supported by an opinion, a certified copy of the opinion shall accompany the mandate.
Rule 5A:32 H. Rehearing.
Rule 5A:32.1 Scope.
The provisions of Rules 5A:33 through 5A:35 do not apply to the denial of a petition for appeal.
Rule 5A:33 Rehearing - On Motion of a Party.
(a) Petition for Rehearing. Any party desiring a rehearing of a decision or order of the Court of Appeals finally disposing of a case shall, within 14 days following such decision or order, file seven copies of a petition for rehearing with the clerk of the Court of Appeals. Carbon copies are permitted.
(b) Response. No response to a petition for rehearing will be received unless requested by the Court of Appeals.
(c) No Oral Argument. No oral argument on the petition will be permitted.
(d) Grounds. No petition for rehearing will be allowed unless one of the judges who decided the case adversely to the petitioner certifies that there is good cause for such rehearing.
Rule 5A:34 Rehearing En Banc.
A request for a rehearing en banc by an aggrieved party shall be filed within 14 days after the date of the order sought to be reheard. Ten copies of any such request shall be filed with the clerk of the Court of Appeals. No answer to a request for a rehearing en banc will be received unless requested by the Court of Appeals. A rehearing en banc on motion of the Court of Appeals shall be ordered no later than 20 days after the date of rendition of the order to be reheard. The clerk of the Court of Appeals shall promptly notify all counsel of action taken pursuant to this Rule .
Rule 5A:35 Procedure for Rehearing.
(a) Rehearing by a Panel. Where rehearing by a panel is granted on petition of a party, the clerk of the Court of Appeals shall notify all counsel promptly. No brief in addition to the petition may be filed by petitioner. Where practicable, such a rehearing will be heard by the same panel which rendered the final decision in the case.
(b) Rehearing En Banc. Where rehearing en banc is granted, the party aggrieved by the final decision of a panel of the Court of Appeals shall file in the office of the clerk of such Court 25 copies of a brief, which shall not exceed 35 typewritten pages or 25 printed pages in length. Such brief shall be filed within 21 days following the date of the order of the Court granting rehearing en banc, and shall be accompanied by a certificate that three copies were mailed or delivered to opposing counsel on or before the date of filing. The Court of Appeals may require the party to whom rehearing en banc has been granted to file with the clerk of the Court 25 copies of an appendix, prepared in conformity with the provisions of Rule 5A:25 within such time as the Court of Appeals shall specify.
(c) Answering Brief. Respondent may file in the office of the clerk of the Court of Appeals an answering brief not to exceed 35 typewritten or 25 printed pages in length, within 14 days after the brief in support of rehearing en banc has been filed, or within 21 days after rehearing by a panel has been granted. Where rehearing en banc has been granted, respondent shall file 25 copies of the answering brief; where rehearing by a panel has been granted, respondent shall file four copies of the answering brief. In either event, three copies of such brief shall be mailed or delivered to opposing counsel on or before the date the answering brief is filed. Respondent may be heard orally whether or not the answering brief is filed.
(d) Reply Brief. The party to whom rehearing en banc has been granted may file in the office of the clerk of the Court of Appeals a reply brief, not to exceed 10 typed or 7 printed pages, within 14 days after the answering brief of respondent has been filed. Twenty-five copies of the reply brief shall be filed. Three copies of such brief shall be mailed or delivered to opposing counsel on or before the date the answering brief is filed.
(e) Oral Argument. When any rehearing is granted, the case will be placed on the privileged docket for oral argument.
Rule 5A:36 I. Settlement.
Rule 5A:36.1 Settlement of Pending Appeal.
When a case has been settled or the appeal withdrawn at any time after the record has been filed, it shall be the duty of counsel to notify the clerk of the Court of Appeals that the case has been settled or this appeal withdrawn. If counsel certifies that the terms of the settlement or withdrawal require further proceedings in the trial court, an order of remand may be entered by a single judge of the Court of Appeals.
Rule 5A:f-1 Appendix of Forms.
Rule 5A:f-1.1 Bond for Costs Alone - Appeal of Right From Circuit Court to Court of Appeals (including further appeal to the Supreme Court).
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of ________________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas judgment was rendered by the Circuit Court of ________________________ on the __________________ day of ____________________________________, 19____, in the case of _______________________________________________________________ ____________________________________________________________; And whereas it is the intention of ___________________________________________ ____________ to appeal said judgment to the Court of Appeals of Virginia; Now, therefore, if ___________________________________________________________ appellant(s)
shall pay all damages, costs, and fees which may be awarded against (him) (her) (them) (it) in the Court of Appeals and Supreme Court if it takes cognizance of the claim, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5A:f-2 Bond for Costs and Suspension - Appeal From Circuit Court to Appellate Court.
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of ________________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas judgment was rendered by the Circuit Court of ________________________ on the __________________ day of ____________________________________, 19____, in the case of _______________________________________________________________ ____________________________________________________________; And whereas it is the intention of ___________________________________________ to appeal said judgment to the (Supreme Court) (Court of Appeals) of Virginia, and suspension of execution of the judgment is sought; Now, therefore, if ___________________________________________________________ appellant(s)
shall perform and satisfy and said judgment or the part thereof proceedings on which are stayed, in case such judgment or such part be affirmed in whole or in part, or the appeal be dismissed, refused or not timely prosecuted, and shall pay all damages, costs, and fees which may be awarded against (him) (her) (them) (it) in the (Supreme Court) (Court of Appeals and Supreme Court if it takes cognizance of the claim) and all actual damages incurred in consequence of the suspension, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5A:f-3 Bond for Costs Alone Required by Appellate Court on Appeal From Circuit Court.
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of ________________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas the (Supreme Court of Virginia) (Court of Appeals of Virginia) on the __________________ day of ____________________________, 19____, awarded an appeal from a judgment rendered against ___________________________________ by appellant(s) the Circuit Court of ________________________________, on the ________________ day of ________________________, 19 ____, upon _______________________________ ____________________________________, or some one for (him) (her) (them) (it), appellant(s) filing an appeal bond with sufficient security in the clerk's office of the Circuit Court of ____________________________________________________________, in the penalty of _____________________________________________________ within fifteen (15) days of the date of the certificate of appeal, with condition as the law directs; Now, therefore, if ___________________________________________________________ appellant(s)
shall pay all damages, costs, and fees which may be awarded against (him) (her) (them) (it) in the (Supreme Court) (Court of Appeals and Supreme Court if it takes cognizance of the claim), then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5A:f-4 Bond for Suspension Alone Required by Appellate Court on Appeal From Circuit Court.
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of ________________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas the (Supreme Court of Virginia) (Court of Appeals of Virginia) on the __________________ day of ______________, 19____, suspended execution of a judgment rendered against _____________________________________ by the Circuit appellant(s) Court of __________, on the ________ day of ________, 19____, upon ___________ _____________________________________________________________, or some one for appellant(s) for (him) (her) (them) (it), filing an appeal bond with sufficient security in the clerk's office of the Circuit Court of __________________, in the penalty of ____________ within fifteen (15) days of the date of the certificate of appeal, with condition as the law directs; Now, therefore, if ___________________________________________________________ appellant(s)
shall perform and satisfy said judgment or the part thereof proceedings on which are stayed, in case such judgment or such part be affirmed in whole or in part, and shall pay all actual damages incurred in consequence of the suspension, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5A:f-5 Bond for Costs and Suspension Required by Appellate Court on Appeal From Circuit Court.
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of ________________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas the (Supreme Court of Virginia) (Court of Appeals of Virginia) on the ____________ day of __________________, 19____, awarded an appeal and (suspension of judgment) (supersedeas) from a judgment rendered against _______________________________________________________________ by the Circuit appellant(s) Court of __________, on the ________ day of ________, 19 ____, upon __________ _____________________________________________________________, or some one for appellant(s) (him)(her)(them)(it) filing an appeal bond with sufficient security in the clerk's office of the Circuit Court of __________________, in the penalty of ____________ within fifteen (15) days of the date of the certificate of appeal, with condition as the law directs; Now, therefore, if ___________________________________________________________ appellant(s)
shall perform and satisfy said judgment or the part thereof proceedings on which are stayed, in case such judgment or such part be affirmed in whole or in part, and shall pay all damages, costs, and fees which may be awarded against (him) (her) (them) (it) in the (Supreme Court) (Court of Appeals and Supreme Court if it takes cognizance of the claim) and all actual damages incurred in consequence of the suspension, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5A:f-6 Additional Bond Required by Appellate Court on Appeal From Circuit Court.
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of ________________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas the (Supreme Court of Virginia) (Court of Appeals of Virginia) on the ________ day of ________________________, 19 ____, required additional bond on this appeal from a judgment rendered against _______________________ by the appellant(s) Circuit Court of ________, on the ________ day of ______________, 19 ____, such additional bond to be filed in the clerk's office of the Circuit Court of ______________________________________________ in the penalty of __________ ______________________________________ within fifteen (15) days of the date of the order requiring additional bond, with condition as the law directs; Now, therefore, if ___________________________________________________________ appellant(s)
shall perform and satisfy said judgment or the part thereof proceedings on which are stayed, in case such judgment or such part be affirmed in whole or in part, and shall pay all actual damages incurred in consequence of the suspension, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5A:f-7 Bond for Costs Alone - Appeal of Right From Virginia Workers' Compensation Commission to Court of Appeals (including further appeal to the Supreme Court).
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of ________________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas an award was entered by the Virginia Workers' Compensation Commission on the ____________ day of ________________________, 19____, in the case of __ ______________________________________________________________________________ ____________________________________________________________; And whereas it is the intention of ___________________________________________ ______________ to appeal said award to the Court of Appeals of Virginia; Now, therefore, if ___________________________________________________________ appellant(s)
shall pay all damages, costs, and fees which may be awarded against (him) (her) (them) (it) in the Court of Appeals and Supreme Court if it takes cognizance of the claim, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5A:f-8 Bond for Costs Alone - Required by Supreme Court on Appeal of Right From State Corporation Commission.
KNOW ALL MEN BY THESE PRESENTS, That we,
______________________________________________________________, principal, and
____________________________________________________________, surety, are held
and firmly bound unto ________________________________________________________
appellee(s)
in the sum of ________________________________________________________________
to the payment of which we bind ourselves, our heirs, successors, personal
representatives and assigns, jointly and severally, firmly by these presents.
The condition of this obligation is such that:
Whereas the Supreme Court of Virginia on the __________________________ day of
____________________, 19____, awarded an appeal from a final order entered in
Case No. ______________________________ under the style of ___________________
by the State Corporation Commission of Virginia, on the ______________________
day of ________________________________________, 19____, on the condition that
_____________________________________________________________________________
appellant(s)
or someone for (him) (her) (them) (it), file an appeal bond with sufficient
security in the clerk's office of the State Corporation Commission, in the
penalty of ___________________________________________________________________
____________________________________________ within fifteen (15) days of the
date of the certificate of appeal, with condition as the law directs;
Now, therefore, if ___________________________________________________________
appellant(s)
shall pay all damages, costs, and fees which may be awarded against (him) (her) (them) (it) in the Supreme Court, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5A:f-9 Bond for Costs and Suspension - Required by Supreme Court on Appeal of Right From State Corporation Commission.
KNOW ALL MEN BY THESE PRESENTS, That we, ______________________________________________________________, principal, and ____________________________________________________________, surety, are held and firmly bound unto ________________________________________________________ appellee(s) in the sum of ________________________________________________________________ to the payment of which we bind ourselves, our heirs, successors, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation is such that: Whereas the Supreme Court of Virginia on the __________________________ day of ____________________, 19 ____, awarded an appeal and suspension from a final order entered in Case No. ______________________________ under the style of __ by the State Corporation Commission of Virginia, on the ______________________ day of _______________________________________, 19 ____, on the condition that ____________________________, or some one for (him) (her) (them) (it), file an appellant(s) appeal bond with sufficient security in the clerk's office of the State Corporation Commission, in the penalty of ____________________________________ within fifteen (15) days of the date of the certificate of appeal, with condition as the law directs; Now, therefore, if ___________________________________________________________ appellant(s)
shall perform and satisfy said order or the part thereof proceedings on which are stayed, in case such order or such part be affirmed in whole or in part, and shall pay all damages, costs, and fees which may be awarded against (him) (her) (them) (it) in the Supreme Court and all actual damages incurred in consequence of the suspension, then this obligation shall be void, otherwise to remain in full force and virtue.
Rule 5A:f-10 Form for Execution and Acknowledgment of All Bonds.
In witness whereof, the said _________________________________________________ ____________________________, principal, and _________________________________ _____________________________________________, surety, have hereunto set their hands and seals, this ________ day of __________________________, 19 ____. __________________________________________ (SEAL) __________________________________________ (SEAL) State of Virginia City/County of ________________________________] The foregoing instrument was acknowledged before me this _____________________ day of __________________, 19____, by ________________________________________ ____________________________________________________________. __________________________________________ Notary Public My commission expires: ______________________________________________________
Rule 5A:f-11 Irrevocable Letters of Credit.
(Name and Address of Bank)
______________, 19____
U.S. $____________
On all communications please refer to (No. of Letter of Credit)
(Name and address of appellee(s))
Dear ______________:
We hereby establish our Irrevocable Letter of Credit No. ____________ in your
favor, for the account of (name and address of appellant(s)), and hereby
undertake to honor your draft at sight on us, not exceeding in the aggregate
U.S. $ (amount in words) . A draft drawn under this letter of credit must
be marked 'Drawn under (Name of Bank) Letter of Credit No. , dated
______________, 19____.' Funds under this letter of credit will be available
to you in a single drawing by presentation of your sight draft drawn on us,
accompanied by:
(For Costs Alone)
1. The original of this letter of credit.
2. Your verified statement that ______________________ (has)(have) failed to
appellant(s)
pay all damages, costs and fees assessed against (him)(her)(them)(it) in the
Court of Appeals of Virginia in the case of _________________________________.
3. A certified copy of an order or itemized statement of costs from the Court
of Appeals assessing such damages, costs and fees against __________________.
appellant(s)
(For Suspension Alone)
1. The original of this letter of credit.
2. Your verified statement that ______________________ (has)(have) failed to
appellant(s)
perform and satisfy the judgment rendered against (him)(her)(them)(it) on
________________________ by the Circuit Court of ________________________ in
the case of ______________________________, and (has)(have) failed to pay all
actual damages incurred in consequence of the suspension of judgment.
3. A copy of the trial court judgment order, attested by its clerk.
4. A copy of an order of the Court of Appeals of Virginia, attested by its
clerk, affirming said judgment or refusing, dismissing or allowing withdrawal
of the appeal of said judgment, or certification by the clerk of the Court of
Appeals that the appeal of said judgment was not prosecuted timely.
5. A copy of an order, if any, of the Court of Appeals or trial court,
attested by the clerk, assessing actual damages in consequence of the
suspension of judgment.
(For Costs and Suspension)
1. The original of this letter of credit.
2. Your verified statement that ______________________ (has)(have) failed to
appellant(s)
perform and satisfy the judgment rendered against (him)(her)(them)(it) on
________________________ by the Circuit Court of ________________________ in
the case of ______________________________, and (has)(have) failed to pay all
damages, costs and fees assessed against (him)(her)(them)(it) in the Court of
Appeals of Virginia, and all actual damages incurred in consequence of the
suspension of judgment.
3. A copy of the trial court judgment order, attested by its clerk.
4. A copy of an order of the Court of Appeals, attested by its clerk,
affirming said judgment or refusing, dismissing or allowing withdrawal of the
appeal of said judgment, or certification by the clerk of the Court of Appeals
that the appeal of said judgment was not prosecuted timely.
5. A copy of an order, if any, of the Court of Appeals, attested by its clerk,
assessing damages, costs and fees against ________________________.
appellant(s)
6. A copy of an order, if any, of the Court of Appeals or trial court,
attested by the clerk, assessing actual damages in consequence of the
suspension of judgment.
This letter of credit is valid until ____ p.m. local time ________, 19____,
and a draft drawn hereunder, if accompanied by documents as specified above,
will be honored if presented to (Presentation Address of Bank) on or before
that date. However, this letter of credit automatically will be renewed for
successive one (1) year periods from the initial expiration date or any
renewal period expiration date hereunder, unless at least sixty (60) days
prior to any such expiration date (Name of Bank) notifies you that it has
elected not to renew this letter of credit for such additional one (1) year
period. The notice required hereunder will be deemed to have been given when
received by you.
In the event that (Name of Bank) elects not to renew this letter of credit as
required above, the full amount of this letter of credit shall be payable to
the Clerk of the Circuit Court of ___________________________ upon
presentation of your verified statement that:
1. A final order of the Court of Appeals of Virginia has not been entered in
the case of ________________________________________ (or, where there has been
suspension of judgment, a final order has not been entered by the Court of
Appeals or trial court assessing actual damages in consequence of the
suspension).
2. Thirty (30) days have elapsed since notice of non-renewal was given and
appellant(s) (has)(have) not filed acceptable substitute security.
In the event of non-renewal, within fifteen (15) days after payment to the
clerk under the previous paragraph, the appellant(s) or someone for
(him)(her)(them)(it) shall file with said clerk an appeal bond in substantial
conformance with the appropriate form in the Appendix to Part Five A of the
rule of the Supreme Court of Virginia. The bond shall be in the penalty of
the amount paid to said clerk under this letter of credit, and said funds
shall be in lieu of surety.
Except as otherwise expressly stated herein, this letter of credit is subject
to the Uniform Customs and Practice for Documentary Credits as most recently
published by the International Chamber of Commerce.
Very truly yours,
_________________________________________________________________________ Bank
By ____________________________________________________ Authorized Signature
Rule 6:1-1 Practice Before Tribunals.
UPR 1-101. Representation Before Tribunals.
(A) A non-lawyer, with or without compensation, shall not represent the interest of another before a tribunal, otherwise than in the presentation of facts, figures or factual conclusions, as distinguished from legal conclusions, except:
(1) A non-lawyer under the supervision of a lawyer who is a regular employee of a legal aid society approved by the Virginia State Bar in accordance with its rule and regulations adopted under §54-52.1 of the Code of Virginia may represent an indigent patron of such society before such a tribunal when authorized to do so by the governing body of such society and when such representation is permitted by the rule of practice of such tribunal. The supervising attorney shall assume personal professional responsibility for any work undertaken by the non-lawyer.
(2) A law student may appear and represent others before such a tribunal in accordance with the third-year student practice Rule .
(B) A non-lawyer regularly employed on a salary basis by a corporation appearing on behalf of his employer before a tribunal shall not engage in activities involving the examination of witnesses, the preparation and filing of briefs or pleadings or the presenting of legal conclusions.
UNAUTHORIZED PRACTICE CONSIDERATIONS.UPC 1-1.
The term "tribunal" shall include, in addition to the courts and judicial officers of Virginia or of the United States of America, the State Corporation Commission of Virginia and its various divisions, the Virginia Workers' Compensation Commission, and the Alcoholic Beverage Control Board, or any agency, authority, board, or commission when it determines the rights and obligations of parties to proceedings before it, as opposed to promulgating rule and regulations of general applicability. Such term does not include a tribunal established by virtue of the Constitution or laws of the United States, to the extent that the regulation of practice before such tribunal has been preempted by federal law, nor does it include a tribunal established under the Constitution or laws of Virginia before which the practice or appearance by a non-lawyer on behalf of another is authorized by statute.