The Virginia court system allows two types of appeals. The first type is from the general district courts to the Circuit Court. The Juvenile and Domestic Relations Court is a general district court. The Juvenile Court Judges frequently but not always tell the parties they have the right to appeal their decision to the Circuit Court. But once it is finished in the Juvenile Court a case can be appealed to the Circuit Court.
These appeals are called de novo appeals. That means that the result in the general district court is completely disregarded. The case starts again in the Circuit Court from the beginning. There is a new trial in the Circuit Court.
Once the Circuit Court has made a decision, there are no more de novo appeals. The only appeals that are allowed are to the Court of Appeals and, in some cases, to the Virginia Supreme Court.
These courts do not conduct trials. No witnesses testify in the Court of Appeals or the Virginia Supreme Court. Courts that decide this type of appeal only decide questions of law.
When most people think of a courtroom, they think of the trials they have seen on television or in movies. Witnesses testify. Documents and photographs are presented as evidence. The lawyers make a closing statement and, in the end, a judge or a jury renders a verdict.
In an appeal, a group of judges makes the decision. In the Virginia Court of Appeals, usually three judges decide the case by majority vote. Ninety percent of the arguments are on paper. The opposing sides write legal briefs.
The court conducts a short oral argument in which each side is allowed to speak for a limited time, usually fifteen minutes but sometimes longer. The court then decides the case on a majority vote. Usually they issue a written opinion explaining why they have ruled the way they have. These written opinions then become part of the body of law that lawyers and judges look to for guidance in later cases.
The appeals court judges base their decision on the record from the trial court, the briefs filed by the lawyers, and their own consideration of the record and the law. The record is the trial transcript together with the other court papers and exhibits connected with the trial. Everything is organized, numbered and made into bound books. Those books are “the record on appeal.” The cost of preparing the record is one of the expenses the party who appeals has to pay.
The law they rely on comes from two main sources. The first is the statutes the legislature has enacted which make up the Virginia Code. The second is the written opinions written in response to past appeals.
The briefs are formal legal arguments in which the lawyers write an explanation of what they want the court to say the law is. The arguments will point to the Code or the prior case opinions and try to show by logic how the case should be decided.
Like the record, the briefs are also made into bound booklets. The booklets are different colors depending on whether they are the appellant’s brief, the appellee’s brief, or the reply brief.
The appellant is the party who is appealing. The appellee is the party who won the trial and does not want the appeal to succeed. The appellant’s goal is to either have the decision of the trial court overturned entirely or modified in some way. The appellee’s goal is to have the trial court’s decision affirmed.
To win an appeal, the appellant must convince the appellate court that the trial judge made a mistake of law. Mistakes can be in the conduct of the trial such as allowing improper evidence or excluding proper evidence. They can also be in applying the law to the facts. If, for example, the law requires proof of two prior convictions before a harsher penalty can be imposed but the trial judge says only one is needed, that is an error of law and the appeals court would rule there was a mistake and the harsher penalty cannot be allowed.
The appeals court can affirm the decision. It can reverse the decision and send the case back to the trial court to fix the mistake they found. It can reverse the decision and, in effect, issue a different verdict. It can also do some combination by affirming some parts of the decision but reversing others.
Appeals are extremely technical. Many lawyers will not do them and, instead, refer their clients to attorney’s who specialize in appeals. For a person with no legal training, presenting or defending an appeal is very difficult because nothing about the way appeals are done fits very well with the average person’s idea of common sense.
For example, often the appellant feels that a witness lied. They want to argue that to the Court of Appeals. But the Court of Appeals does not decide the credibility of witnesses. They will say it was for the trial court to decide whether the witness told the truth. They will not second guess the jury or the judge who actually saw the witness testify. This is called “deferring to the trier of fact.”
So making the argument that the witness lied is a complete waste of time. The appeals court is going to ignore the argument entirely. What they might consider, however, would be whether the appellant was not allowed to properly cross-examine the witness or the trial judge gave the jury an improper instruction regarding the witness’s testimony. Those would be the kinds of errors of law that the appeals courts exist to correct.
The rules are very technical. There are strict deadlines for filing the appeal briefs and what must be in them. There is a deadline for simply announcing that you are appealing. The notice of appeal as it is called must be filed in the trial court within 30 days of the trial judge signing the judgment. It is easy even for lawyers to be tripped up by these rules.