Do away with Assignments of Error? I Think Not, Mr. O’Keeffe.
Fellow Appellate Blawger James J. O’Keeffe has a provocative post on his website which I picked up on Linked-In and commented there and he replied and I re-replied (and he may have re-re-replied by now). I will not go into significant detail as you can click the links and read the back-and-forth yourself, but his premise is that assignments of error will serve no purpose in briefs filed in appeals of right — he is positing that the new rules governing appeals in the Court of Appeals of Virginia (which will all be appeals of right come January 1) should do away with these and permit all case to be “decided on the merits.”
To be frank, I think this is a very bad idea and said as much in my first response. He replied with a qualification that made his argument a little (but only a little) more palatable. He said that assignments of error have no purpose in a well written brief. I have no argument with him on that point, but (you knew that there was a “but” coming, right?) that qualification is very, extremely, hugely significant for the simple reason that the overwhelming majority of briefs filed in the appellate courts of Virginia do not fall into the category of “well written.”
Now, imagine yourself to be a Judge or Justice of the appellate court (or a staff attorney or chambers law clerk — or the Assistant Attorney General having to respond to dozens of criminal appeals). You have a stack of a dozen or more briefs in front of you and maybe one of these is well written. The others range from mildly obtuse to mind-numbingly incomprehensible — and not one of them has a list of the errors being assigned to the lower court. Many do not even have a coherent outline structure. You begin to read the first brief, but its summary of the case reads like a poorly edited Hallmark melodrama, tugging at the heartstrings over the death of innocent youth (yes, I am thinking of an actual brief I once had to read in a civil wrongful death case). The statement of facts is no better (arguably worse) and when you finally get to the argument you have difficulty “laying your finger on the error” because, well, there was no assignment of error to do that for you. In the actual case, there was an assignment of error and it did “lay its finger on the error,” which had to do with the trial court’s admission of a single statement by an expert witness. Virtually none of the statement of the case, the statement of facts, and precious little of the argument addressed the standard of review (abuse of discretion) and the law applicable to the case (whether an expert could express an opinion about the former state of an electrical connection in an automobile headlight where said head light and the wrecked vehicle it was attached to had been sitting the junk yard six-months or so before the expert examined it). Now imagine having to glean the error being addressed in 90% of the briefs you have to read because they are not well written and do not have assignments of error.
Jay’s principal beef with assignments of error is that, if not well written, they can be a “trap for the unwary.” I presume he is speaking of those times when an appeal is dismissed because the attorney failed to assign error to a procedural bar or perhaps assigned error to one basis for a court’s ruling, but not an alternate basis, or, as in Cardinal Holdings v. Deal, simple put the wrong noun in to describe a party, thus reversing the meaning of the assignment of error (I admit that I may be one of the only appellate attorneys in Virginia who thinks Cardinal Holdings was correctly decided). To this argument I say, “Suck it up, Buttercup.” If an attorney cannot draft a comprehensible, complete and accurate assignment of error, is it really conceivable that said attorney will be able to make a comprehensible, complete and accurate argument? The procedural rule that requires an assignment of error is there for a purpose — to make the attorneys, not the judges, decide what the argument is going to be about. If you cannot clearly state the basis upon which you want the judgment below reversed, it’s likely that there is no basis for doing so. And if there is and you can’t see it plainly, find an attorney who can.