Change in Virginia

Sunday, June 26, 2005

THE VIRGINIA COURT of Appeals has proposed changes in its rules that may initially seem like technical adjustments. But in the struggle to make Virginia's justice system function fairly, they would be, if enacted, something of a triumph.

The purpose of the changes, which the state's judicial council unanimously cleared last week and sent for final approval to the state Supreme Court, is to give the judges more flexibility to accept late filings from convicts whose lawyers blow their appeals by missing key deadlines. This is an epidemic problem in Virginia, where criminal appeals routinely get thrown out not because they lack merit but because lawyers file documents as little as one day too late. The proposal's fate before the Supreme Court is not clear; earlier this year that court objected to a General Assembly bill aimed at the problem. But the justices certainly ought to let this rule change take effect. Indeed, they ought to adopt something similar for their own proceedings.

In the year since a series of Post editorials helped reveal the scope and severity of the problem, the Virginia State Bar has pursued actions against numerous attorneys; the Court of Appeals has facilitated the bar's investigation by beginning routine reporting to disciplinary authorities of cases in which attorneys throw away their clients' rights; and the General Assembly (notwithstanding the high court's grumbling) passed an important law making it easier for clients who lose their right to appeal to get it back. What has not changed, however, are the underlying rules, which irrationally punish the clients for errors by their lawyers.

The new proposal is not everything it should be; far from it. It doesn't enact the sensible principle -- common in other jurisdictions -- that the proper response to a lawyer's tardiness is to lean on the lawyer, not to play gotcha with a client who may have a serious legal claim or may even be innocent. But it significantly softens the currently inflexible rules by permitting a lawyer who has missed a filing deadline to apply for an extension of time retroactively. The proposed rule would allow the court to grant such a request -- depending on the type of filing -- either fairly liberally or under more restrictive circumstances.

This would be a step forward, particularly in combination with the law the General Assembly passed. It would allow the court in many instances to simply forgive the failure to file material on time, while the new statute will make those cases in which the court cannot look the other way relatively easy to correct. The judges of the Court of Appeals deserve credit for responding seriously to this problem. The Virginia Supreme Court should follow suit.

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