How to Make an Appellate Brief in a Personal Injury Case in Virginia Compelling?
Compelling and eye-catching need to be the focus. Your audience is an appellate judge who spends most of their day reading briefs. They do listen to oral argument of the lawyers but most of their day consists of reading briefs. Pretty boring stuff. If you want the judges on your appellate panel to do something for you, you need to somehow heighten their interest.
There are several things that can be done in that regard:
- The opening page of your brief should be an introduction. While such an introduction may not be authorized in the rules, you should include it anyhow. It needs to be eye-catching. It needs to set forth the most compelling arguments up-front why the lower court made a mistake and why that mistake needs to be corrected.
- Your introduction should be brief. No more than one page.
- Your Assignments of Error need to be concise and to the point. They need to expressly state where the alleged error was presented to the lower court, so that the lower court had an opportunity to correct it.
- The failing of trial lawyers who handle appellate briefs is that they want to retry the case. The appeal is not an opportunity to retry the case. As a result, your Statement of Facts needs to be focused on what the errors are committed by the lower court. To lay out all of your evidence and report the wonderful job you did at trial does not cut it.
- Your Argument section should be begin with an analogy. Come up with some simple analogy as to why the lower court got it wrong. Analogies are never 100% accurate but they do help put the facts in a somewhat different context to make the case meaningful to an appellate judge.
What Does the Term “Standard of Review” Mean?
The term “Standard of Review” is the touchstone by which the appellate court reviews the lower court decision. It’s the template that the appellate court is going to apply to determine whether or not the lower court made an error. There are several different standards of review:
- De Novo. Stahl v. Stitt, 301 Va. 1, 8 (2022). That means the appellate court reviews the lower court decision fresh. They’re not bound by any determinations made by the lower court. They are however bound by statutory dictates. In particular they are not permitted to rewrite statutes. Boynton v. Kilgore, 271 Va. 220, 230 (2006)
- Abuse of discretion. Arch Ins. Co. v. FVCBank, 301 Va. 503, 515 (2022). This means that the appellate court must give great deference to the lower court decision and may reverse it only if the lower court abused its discretion, which is quite broad, in the decision it made, in particular the trial court’s decision to accept a witness as an expert absent an abuse of discretion. Wakeman v. Commonwealth, 69 Va. App. 528, 535 (2018) Whether an adequate foundation has been laid for such testimony is within the discretion of the trial court. Smith v. Commonwealth, 265 Va. 250, 254 (2003) This is all based upon the idea that the judge closest to the case is the one best able to discern where the equities lie. Du v. Commonwealth, 292 Va. 555, 564 (2016); Welsh v. Commonwealth, 304 Va. 118, 139 (2025)
- Trial court’s refusal to set aside a jury verdict is presumed correct and can only be reversed if plainly wrong or without evidence to support it. Ferguson Enters., Inc. v. F.H. Furr, 297 Va. 539, 547 (2019)
- In an instance where the defense moves to strike the plaintiff’s evidence at the close of the plaintiff’s case and then puts on its own evidence, the defense thereby waives any objection to the trial court’s denial of its motion. United Leasing Corp. v. Lehner Family Business Trust, 279 Va. 510, 517 (2010) The sufficiency of the evidence then is based upon the evidentiary record at the conclusion of the defendant’s case. If by chance they have done something during their case to waive any objection to the admissibility of evidence during the plaintiff’s case, that must be factored in as to any standard of review.
- There are other conceivable standards of review but those are the primary ones.
Your Most Compelling Argument Should be Up Front
By the time you get to the Argument section of your brief, the court will already have a good sense as to where you’re going:
- If the lower court misapplied the law, then state that starkly. If the lower court has developed a new legal principle or concept that it is not authorized to promulgate, then state that starkly.
- If the lower court relied upon a misstatement of the record, then state that starkly.
- If the other party has waived objections then state that starkly as to how that has happened. It may be that the approbate-reprobate doctrine is invoked.
- If the lower court is an intermediate appellate court and it failed to give due deference to the trial court’s discretion, then point that out starkly.
- If the lower court is an appellate court and it did not view the evidence in the light most favorable to the prevailing party then point that out starkly
- If the lower court decision is a solution in search of a problem, then point that out starkly. Sometimes judges or appellate panels come up with solutions to things that they think are a problem but they’re not a problem. If that is what has happened, then emphasize that.
- If the lower court decision needlessly increases the cost of litigation then point that out.
Don’t Forget Cross Error
If you are on the receiving end of the appeal do not forget assignment of cross-error. This is an opportunity to say that if you lose on the issues raised by the appellant you still win. Do not forego it. Your brief’s title must expressly state you are raising cross error. What you are saying is that if the lower court erred on issue “X” you still win on issue “Y”. The lower court may have either ruled incorrectly on issue “Y” or did not rule on it at all. The latter is also error.
Call or contact us for a free consult. Also for more info on successor liability see the Wikipedia pages. Also see the post on this site dealing with duty issues.
