Are you prepared to spend more time, money, and effort litigating your civil case? Come January 1, 2022, all civil litigants should expect their cases to entail higher litigation costs and to take a much longer time to reach a final disposition. Currently, any party dissatisfied with the outcome of their civil, non-domestic circuit court case (“civil case”) is generally forced to accept the circuit court’s ruling since the Virginia Supreme Court (“Supreme Court”) must be asked for permission to appeal. The raw numbers help demonstrate the futility of this system. In 2016, only 23% of civil appeal petitions were granted by the Supreme Court.[1]  Imagine losing your case on a close legal question only to find out appeals are rarely even heard.

It is about to end Come January 1, 2021, all civil litigants will have the right to appeal their case to the Virginia Court of Appeals (“COA”).

On March 31, 2020, Governor Ralph Northam signed Senate Bill 1261 (“S.B. 1261”) into law, which alters civil appeal procedure, expands the COA’s jurisdiction, and increases the number of COA judges. The legislation’s impact on the judicial landscape will be substantial as appeals become more frequent, cases will spend more time in the court system, and consequentially, attorneys’ fees will rise.

Senate Bill 1261 spans six sections and forty pages. Potential civil litigants should pay particular attention to sections I, III, and VI of S.B. 1261, as these sections will be the most relevant to them. The first section provides a redline markup of the changes to the existing Code and although there are many amendments to the Code, we will only mention Virginia Code § 8.01- 675.3, which prescribes the timeline for appealing civil cases to the Court of Appeals. A party is allowed the same amount of time to file their notice of appeal (“notice”) to the COA as they are to file their notice to the Supreme Court – thirty days from the circuit court’s order.

Just for the next few months, Section III declares that any party who files their notice of appeal prior to January 1, 2022 will have their case heard, if their petition is granted, by the Supreme Court.

The last section of S.B. 1261 proclaims that (almost) all legislative changes will become effective January 1, 2022.

Timelines are crucial to understanding the legislation’s unintended consequences. Since a party has 30 days to file a notice and the new amendments go into effect January 1, 2022, the last date a final order can be entered, and an appealing party must appeal to the Supreme Court is November 30th, 2021. Appeals from final orders entered on or after January 1, 2022 shall be heard by the Court of Appeals. Therefore, parties appealing from final orders entered between December 1 and December 30, 2021 have the option of filing their notice before the 30-day deadline, therefore invoking the jurisdiction of the Supreme Court, or waiting until after January 1, 2022 to be guaranteed an appeal as of right.

Hiring attorneys who have already analyzed the implications of the new procedural changes will give litigants a distinct advantage. Counselors with solid understanding, effective strategies, and swift execution can save money, time, and unnecessary headaches. Appellate demands will increase substantially come January 1, 2022 and the most successful parties will be those who retain counselors who are prepared for the battle ahead.

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By Paul A. Prados, Partner, Executive Law Partners, Fairfax, Virginia & Amelia Kozlowski, Senior Associate, Executive Law Partners, Fairfax, Virginia

July 16, 2021

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[1] Supreme Court of Virginia Statistical Review 2016, SUP. CT. VA. (2017) http://www.courts.state.va.us/courtadmin/aoc/judpln/csi/stats/scv/scv_caseload_rpt_2016.pdf