Appellate procedure in West Virginia: why Rule 4A's expedited petition process isn't attractive to attorneys.

• Author: Wigal, Grace

West Virginia is unusual in that it has no intermediate appellate court; (1) petitions for appeal of circuit court decisions go directly to the state's highest court, the West Virginia Supreme Court of Appeals. Appellate review in the supreme court of appeals is totally discretionary; there is no constitutional right of review. (2) Thus, all parties to a controversy seeking resolution by the court must first petition the court for review. (3) Yet, the supreme court of appeals is one of the busiest in the country, prompting the National Center for State Courts to note that "West Virginia receives more appeals in their one-level appellate court than some states with two-tiered appellate court systems." (4) In fact, 3,029 petitions for appeal were filed with the court in year 2000, of which 578 were civil petitions. (5) Although the court ultimately rendered 1,459 final substantive decisions in all classes of cases, (6) its 28.5% rate of review for civil petitions demonstrates that the petitioner in a civil case has only a slightly better chance than one in four of having the petition accepted for appeal. In view of these odds, a less expensive process for petition seemingly would be attractive to lawyers, particularly those representing clients with weaker appellate cases or fewer dollars to spend. (7)

In fact, an expedited petition process does exist; it permits the lawyer to file the petition without the transcript of testimony taken in the lower court. (8) This option not only saves the petitioner the time associated with preparing and reviewing the transcript, but also saves the considerable expense of having the court reporter prepare the transcript. Yet, less than one percent of cases are filed this way, (9) indicating that lawyers believe that the expedited process is unnecessary or unwise. This article explains the expedited process and argues why more attorneys filing petitions in West Virginia should consider it. The article also briefly summarizes the other alternatives for expediting appeals in West Virginia and suggests why attorneys favor those alternatives over the rule-based process for expediting the appeal at the petition stage.

1. THE EXPEDITED PETITION

   The procedures governing both the usual and the expedited process of appeal from the circuit court are set out in the West Virginia Rules of Appellate Procedure. While Rule 4 outlines the usual steps for filing and transmitting a petition for appellate review, the supreme court of appeals has recognized the need for an alternative process of petitioning for appeal that is "inexpensive and expeditious." (10) The expedited process is described by Rule 4A.

   The expedited appeal procedure under Rule 4A parallels the usual petition process of Rule 4 in many ways. Under either rule, the petitioner must designate the record within thirty days of entry of the final order prompting the appeal. (11) This requirement allows the circuit clerk to begin compiling the record in a timely manner. In either instance, the attorney must complete an extensive docketing statement, which gives an overview of the case. Finally, although there is no filing fee for the petition itself, the petitioner in either instance must pay, or post a bond to cover payment, for the expense of preparing and indexing the record, the fee for filing and certifying the record, and the cost of transmitting the appeal to the supreme court.

   Despite these similarities in the rules for petitioning for appeal, lawyers should not be misled into believing that Rule 4A offers little advantage over Rule 4. The expedited petition can result in a substantial savings of time and money for the attorney who wants to quickly and inexpensively test the court's willingness to hear the appeal. The Rule 4A expedited process saves money because the petitioner does not have to pay for the transcript. Indigence is not a bar to obtaining a transcript in West Virginia because the petitioner can file an affidavit of indigency with the circuit clerk's office, (12) and if the circuit court approves the appeal on this basis, the state will pay for the transcript and the costs of preparing the record. Yet, many clients, although not indigent, do not have the money to pay for the transcript, which can run into thousands of dollars if it reflects multiple days of testimony. (13) Furthermore, plaintiffs' attorneys who have taken a case on a contingent fee basis should find this cost savings attractive at the petition stage simply because the odds are against having the appeal accepted.

   Despite this financial incentive to use the Rule 4A process, attorneys are hesitant to forego providing a transcript for the appeal, and this hesitation may be rooted in Rule 4A's language granting permission to use a statement of the case in lieu of the transcript. (14) Rule 4A says that the petition for appeal must contain a thorough statement of facts "pertinent to the issues [the petitioner] raises." (15) The petitioner's attorney must certify that the facts are "faithfully represented and that they are accurately presented to the best of his ability." (16) Use of the expedited process "places the highest possible fiduciary duty upon a lawyer with regard to the court and intentional misrepresentation of any sort is grounds for disciplinary action." (17) While this language is strong, it is merely a directive to attorneys to take time to be thorough and accurate. Attorneys should not see it as an indication that the court favors the submission of a transcript, particularly since the adoption of Rule 4A reflects the court's clear indication that the transcript is not necessary. In fact, the court's practice is to rely upon the representations of counsel at the petition stage, even when a transcript is filed. (18) Therefore, the court does not disfavor the use of the certified statement of the case; it merely desires the statement to be thorough and accurate so that it can fairly assess the merits of the petition.

   The second benefit of using Rule 4A is that it can cut sixty days or more out of the timeline for resolution of the appeal. When the petitioner's attorney designates the record during the first thirty days after judgment, the circuit clerk is put on notice of the upcoming Rule 4A appeal and understands that the petition will be filed within Rule 4A's sixty-day window rather than the usual 120-day window. This short timeframe encourages the clerk to expeditiously prepare the record in anticipation of the early filing. The early filing date also forces the lawyer to begin the briefing process; when the record has been prepared, the lawyer need only add record citations to the petition. Of course, when the petition is filed, other parties to the action have thirty days to file a response brief. When the thirty days have lapsed, or when the response brief is filed (whichever occurs first), the circuit clerk immediately transmits the...