Rule 5A:25 - Appendix and Preliminary Designations of Assignments of Error(a)When Appendix Is Required. - (1)Electronic Record. Except as provided in Rule 5A:25(a)(3), no appendix is required in cases where the clerk of the trial court or other tribunal has filed the record electronically. In cases where no appendix is required, parties must still file with the clerk of this Court a statement of the assignments of error on the schedule specified in Rule 5A:25(d) below.(2)Paper record. Unless otherwise ordered by the Court, an appendix must be filed in cases where the clerk of the trial court or other tribunal has filed a paper record.(3)Videotaped proceedings. An appendix must be filed in cases where the electronic record filed by the clerk of the trial court includes the official videotape recording of a court proceeding, unless:(A) the transcript is not needed to resolve any preliminary or subsequent assignment of error; or(B) a party submits a written statement of facts in accordance with Rule 5A:8(c) in lieu of a transcript of the videotaped proceeding.(4)Pro se appellants. No appendix is required of a pro se appellant who is incarcerated.(5) Filing time. When an appendix is required, it must be filed by the appellant no later than the time of filing the opening brief.(b)Requiring or dispensing with an appendix. - This Court may by order require the filing and service of an appendix and may, sua sponte or on motion, enter an order dispensing with the appendix and permitting an appeal to proceed on the original record with any copies of the record, or relevant parts, that this Court may order the parties to file.(c)Contents. - An appendix must include: (1) the basic initial pleading (as finally amended);(2) the judgment appealed from, and any memorandum or opinion relating thereto;(3) any testimony and other incidents of the case germane to the preliminary or any subsequent assignments of error;(4) the title (but not the caption) of each paper contained in the appendix, and its filing date;(5) the names of witnesses printed at the beginning of excerpts from their testimony and at the top of each page thereof; and(6) exhibits necessary for an understanding of the case that can reasonably be reproduced. A party is not required to transcribe an exhibit that consists of an audio or video recording.(d)Determination of Contents of Appendix and Exchange of Assignments of Error. - Within 15 days after the filing of the record with this Court or, in a case in which a petition for appeal has been granted, within 15 days after the date of the certificate of appeal issued by the clerk of this Court, counsel for appellant must file in the office of the clerk of this Court a written statement signed by all counsel setting forth an agreed designation of the parts of the record to be included in the appendix. In an appeal of right, the agreement must include a statement of preliminary assignments of error and any preliminary assignments of cross-error; in a granted appeal, the agreed statement must include all granted assignments of error and crosserror. In the absence of such an agreement, in an appeal of right, counsel for appellant must file with the clerk of this Court a preliminary statement of the assignments of error and a designation of the contents to be included in the appendix within 15 days after the filing of the record. In the absence of such agreement, in a case in which a petition for appeal has been granted, counsel for the appellant must file a designation of the contents to be included in the appendix along with a list of all the granted assignments of error and cross-error within 15 days after the date of the certificate of appeal. Not more than 10 days after the appellant's designation is filed, counsel for appellee must file with the clerk of this Court a designation of any additional contents to be included in the appendix and, in appeals of right, a preliminary statement of any additional assignments of error the appellee wishes to present. The appellant must include in the appendix the parts thus designated, together with any additional parts the appellant considers germane. If a party designates a court proceeding or any portion of a court proceeding recorded only by videotape, the appendix must include a written transcript of the proceeding, or of the portion so designated, prepared by a court reporter. In appeals of right, the "preliminary statement of the assignments of error" and "the preliminary statement of any additional assignments of error the appellee wishes to present" referenced in this Rule are non-binding, and are intended to assist the parties in designating the contents of the appendix and narrowing the issues in controversy. Rules 5A:20 and 5A:21 govern the requirements for assignments of error and assignments of cross-error in briefs.(e)Table of Contents; Form of Presentation. - At the beginning of the appendix there must be a table of contents, which must include the name of each witness whose testimony is included in the appendix and the page number of the appendix at which each portion of the testimony of the witness begins. Thereafter, the parts of the record to be reproduced must be set out in chronological order. When matter contained in the transcript of proceedings is set out in the appendix, the page of the transcript or of the record at which such matter may be found must be indicated in brackets immediately before the matter which is set out. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial matters (such as captions, subscriptions and acknowledgements) should be omitted. A question and its answer may be contained in a single paragraph.(f)Costs. - Unless counsel otherwise agree, the cost of producing the appendix must initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determination of the issue presented, he may so advise the appellee, and the appellee must advance the cost of including such parts. The cost of producing the appendix will be taxed as costs in the case. To the extent a preliminary statement of assignments or additional assignments made in accordance with this Rule is so misleading or incomplete that the opposing party must supplement the appendix, the opposing party may seek leave and file a supplemental appendix to be filed no later than the date the party's next brief is due. The opposing party may seek costs associated with the misleading or incomplete designation and any required supplementation.(g)Penalty. - Nothing should be included in the appendix that is not germane to an assignment of error. As examples, no pleadings (other than the basic initial pleading as finally amended) should be included unless an assignment of error is presented relating to it, and then only the portion thereof to which the assignment relates; and testimony relating solely to the amount of damages should not be included unless error is assigned relating to the amount of damages. If parts of the record are included in the appendix unnecessarily at the direction of a party, this Court may impose the cost of producing such parts on that party.(h)Assumptions. - It will be assumed that the appendix contains everything germane to the assignments of error. This Court may, however, consider other parts of the record.(i)Sealed Materials in the Appendix. - Appendices filed with this Court are a matter of public record. If counsel concludes it is necessary to include sealed material in the appendix, then, in order to maintain the confidentiality of the materials, counsel must designate the sealed material for inclusion in a sealed supplemental appendix to be filed separately from the regular appendix. A sealed volume of the appendix must be filed in the manner prescribed by the VACES Guidelines and User's Manual. The Guidelines are located on this Court's website at https://eapps.courts.state.va.us/help/robo/vaces/index.htm#t=VACES.htm. 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 March 1, 2017, effective 5/1/2017; amended by order dated April 17, 2017, effective immediately; amended by order July 2, 2019, effective 9/1/2019; amended by order dated January 9, 2020, effective 3/15/2020; 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 April 1, 2021, effective 6/1/2021; 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 November 21, 2023, effective 1/20/2024; amended by order dated June 21, 2024, effective 8/20/2024.ADVISORY NOTE
As of January 1, 2022, fewer than ten circuit courts did not routinely file electronic records. Some circuit courts that regularly file electronic records do not do so in certain cases. Counsel should consult the clerk's office of the circuit court from which the appeal is taken to determine if an electronic record will be filed.