What's Old is New Again: Virginia’s New Right to Appeal

On Wednesday, March 31, 2021, Virginia Governor Ralph Northam signed into law Senate Bill 1261, which provides a new right in Virginia, namely the right to an appeal from Virginia state trial courts in all civil cases. The law becomes effective on January 1, 2022. 

The Right to an Appeal in All Civil Cases

This change in Virginia law provides a new right based on an old idea. The Commonwealth of Virginia is the only state in the nation that did not already have the right to an appeal in all civil cases.  Until the new law takes effect, civil action appeals from Virginia state trial courts are available only in the discretion of the Supreme Court of Virginia. (In contrast, litigants in Virginia’s federal trial courts have a longstanding right to appeal to the Court of Appeals for the Fourth Circuit.) However, starting in 2022, appeals from Virginia state trial courts to the Court of Appeals of Virginia will be available in all civil actions.

The Court of Appeals of Virginia was created in 1985. Previously, its jurisdiction was limited to certain types of cases, including criminal and domestic relations appeals as well as the review of administrative decisions by state agencies. The court will increase in size by six (6) judges to handle its expanded caseload.

Basic Takeaways for Employers and Employees in Virginia

Employers and employees with litigation in Virginia state courts, now or in the future, are affected by this. This change in the law is significant and adds a new dimension to any civil litigation strategy in Virginia state courts. Until the new law takes effect, a win at the trial court level in most civil cases will mean that the decision will never be overturned, because the Supreme Court of Virginia does not grant appeals in the vast majority of cases, and reversals are achieved only in a subset of granted appeals. However, under the new law, winners at the trial court level must be prepared to defend their victory at the Court of Appeals of Virginia under its new expanded jurisdiction.

Next Steps for Employers and Employees

If you have employment litigation in Virginia state trial court, your litigation strategy will need to account for this new change in the law. Given the significance of this new right to an appeal in all civil cases, it may also be prudent to seek a second opinion from experienced counsel.

Questions

Shehan Legal closely monitors legal developments affecting employees and employers, in New York and Virginia, and federal government employees worldwide. For more information visit www.shehanlegal.com. Or, to speak with attorney Kevin Shehan, please call 917-740-7805, email kevin@shehanlegal.com, or send a message using Shehan Legal’s Contact page (linked here).

EXTERNAL RESOURCES:

The full text of the Senate Bill 1261 is available at the Virginia Legislative Information System website (linked here).

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