Va. R. Sup. Ct. 5A:20

As amended through September 26, 2024

Rule 5A:20 - Requirements for Opening Brief of Appellant

The opening brief of appellant must contain:

(a) A table of contents and table of authorities with cases alphabetically arranged. Citations of all authorities must include the year thereof.

(b) A brief statement of the nature of the case and of the material proceedings in the trial court, which should omit references to any paper filed or action taken that does not relate to the assignments of error.

(c) Under a heading entitled "Assignments of Error," the brief must list, clearly and concisely and without extraneous argument, the specific errors in the rulings below-or the issue(s) on which the tribunal or court appealed from failed to rule-upon which the party intends to rely, or the specific existing case law that should be overturned, extended, modified or reversed. An exact reference to the page(s) of the record or appendix where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken must be included with each assignment of error but is not part of the assignment of error. If the error relates to failure of the tribunal or court below to rule on any issue, error must be assigned to such failure to rule, providing an exact reference to the page(s) of the record or appendix where the alleged error has been preserved in the tribunal below, and specifying the opportunity that was provided to the tribunal or court to rule on the issue(s).

(1) Effect of Failure to Assign Error. Only assignments of error listed in the brief will be noticed by this Court. If the brief does not contain assignments of error, the appeal will be dismissed.

(2) Insufficient Assignments of Error. An assignment of error that does not address the findings, rulings, or failures to rule on issues in the trial court or other tribunal from which an appeal is taken, or which merely states that the judgment or award is contrary to the law and the evidence, is not sufficient. If the assignments of error are insufficient, the appeal will be dismissed.

(3) Effect of Failure to Use Separate Heading or Include Preservation Reference. If the brief contains assignments of error, but the assignments of error are not set forth under a separate heading as provided in subparagraph (c) of this Rule, a rule to show cause will issue pursuant to Rule 5A:1A. If there is a deficiency in the reference to the page(s) of the record or appendix where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken-including, with respect to error assigned to failure of such tribunal to rule on an issue, an exact reference to the page(s) where the issue was preserved in such tribunal, specifying the opportunity that was provided to the tribunal to rule on the issue(s)-a rule to show cause will issue pursuant to Rule 5A:1A.

(4) Assignments of error listed in the opening brief of appellant are binding on the appellant for substantive purposes, unless the Court has granted a motion to amend.

(d) A clear and concise statement of the facts that relate to the assignments of error, with references to the pages of the record or appendix. Any quotation from the record should be brief. When the facts are in dispute, the brief must 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 standard of review and the argument (including principles of law and authorities) relating to each assignment of error. When the assignment of error was not preserved in the trial court, counsel must state why the good cause and/or ends of justice exceptions to Rule 5A:18 are applicable. With respect to each assignment of error, the standard of review and the argument- including principles of law and the authorities-must be stated in one place and not scattered through the brief. At the option of counsel, the argument may be preceded by a short 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 counsel's Virginia State Bar number, address, telephone number, facsimile number (if any), and email address.

(h) A certificate (which need not be signed in handwriting) stating (1) that it was served on opposing counsel, and (2) whether counsel desires to waive oral argument. The certificate must also state the number of words (headings, footnotes, and quotations are included in the page and word limits; the cover page, table of contents, table of authorities, signature blocks, and certificate are not included in the page and word limits). Additionally, any party may waive oral argument without leave of this 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.

(i) Procedure for an Anders appeal. - If counsel for appellant finds the client's appeal to be without merit, counsel must comply with the requirements of Anders v. California, 386 U.S. 738 (1967), and Akbar v. Commonwealth, 7 Va. App. 611 (1989). In such an appeal, counsel must file (1) an opening brief that refers to anything in the record that might arguably support the appeal and that demonstrates counsel's conscientious examination of the merits of the appeal; (2) a motion for leave to withdraw as counsel; and (3) a motion for an extension of time to allow the appellant to file a supplemental brief. The opening brief and the motion for leave to withdraw as counsel should specifically cite Anders . All three pleadings must be served on opposing counsel and upon the client and must contain a certificate providing evidence of such service. This Court will rule upon the motion for extension of time upon its receipt, but will not rule on the motion to withdraw as counsel until this Court considers the case in its entirety, including any supplemental briefing that may be filed. The appellee brief must be filed in the office of the clerk of this Court within 30 days after the filing of the supplemental brief or, if no supplemental brief is filed, within 30 days after the supplemental brief was due.

Va. Sup. Ct. 5A:20

Amended by order dated June 14, 2005, effective 8/15/2005; amended by order dated April 30, 2010, effective 7/1/2010; amended by order dated April 10, 2015, effective 7/1/2015; amended by order dated September 3, 2020, effective 9/3/2020; amended by order dated November 23, 2020, effective 3/1/2021; amended by order dated November 1, 2021, effective 1/1/2022; amended by order dated November 10, 2022, effective 1/9/2023; amended by order dated June 21, 2024, effective 8/20/2024.