U.S. Chamber, W.Va's trial lawyers submit thoughts on new rules

Jessica M. Karmasek Jul. 22, 2010, 2:39pm

WVAJ President Tim Bailey

CHARLESTON, W.Va. (Legal Newsline) -- The U.S. Chamber Institute for Legal Reform, in comments filed earlier this week, says changes proposed by the West Virginia Supreme Court to its appellate procedures don't go far enough.

Meanwhile, the West Virginia Association of Justice, the state's trial lawyer group, said it welcomes the proposed revisions and "generally approve the same."

The ILR -- which filed its comments on Monday, the last day public comments could be submitted -- is calling for a creation of an intermediate court of appeals.

The ILR owns Legal Newsline.

"This solution would lighten the workload of the Supreme Court of Appeals, provide further guidance and clarity in the law for trial courts, and increase public confidence in the judicial system," it wrote.

The proposed rules provide for a decision by the Supreme Court on the merits of every appeal.

The ILR also says it is concerned the proposed rules would establish a system that violates the state's constitution.

"The intent of the proposed revisions is to provide all litigants with an appeal as of right, requiring the Supreme Court to issue a written opinion explaining its decision in each appeal," the ILR wrote. "However, not every case would be entitled to plenary appellate review."

Instead, it argues, the proposed revisions create a two-tiered system, "with disparate procedures and time allotments for oral argument, depending on whether the justices believe the case involves a major appellate issue or only a minor one."

In addition, the ILR says the revised rules threaten to increase the workload of an already-overburdened Supreme Court.

According to statistics provided to them from the state's Supreme Court of Appeals, in 2006, a total of 3,631 appeals were filed with the appeals court -- nearly 1,500 more than the next busiest state lacking a permanent intermediate court, Nevada, and more than Delaware, Maine, North Dakota, Rhode Island and Wyoming combined.

Because the proposed revisions would fail to create a robust right of appeal, the ILR argues, companies doing business in West Virginia "would continue to face the risk of extremely high punitive damages verdicts with no real guarantee of meaningful appellate review."

The WVAJ issue with some of the language within some select revised rules, including Rule 5.

In it contains a new rule regarding the filing of a notice of appeal within 30 days. WVAJ argues the 30-day deadline to submit assignments of error may cause hardship.

"Oftentimes, the trial record is not ready for review within 30 days of the final judgment," they wrote in their comments. "We request some leniency be given..."

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