Appellate Law: Standard of Review in Virginia Appellate Courts


As discussed in our recent article, the Virginia General Assembly voted to allow most criminal defendants and civil litigants to have an appeal as of right to the Court of Appeals of Virginia starting on January 1, 2022.  This means that Virginia lawyers will spend more time in the Commonwealth's appellate courts and will need to rely more on appellate specialist attorneys. Vandeventer Black is releasing several articles on Appellate Law to help businesses and lawyers navigate the complicated appellate world in Virginia.  This article will focus on standards of review in Virginia appellate courts.

Despite appearing to be a minor issue to those new to the appellate world, the standard of review that an appellate court uses to evaluate the appealed aspects of a trial court's ruling has a significant impact on the fate of every appeal.  The standard of review defines the level of deference that must be attributed to the rulings of the lower court on appeal.  In fact, the Rules of the Supreme Court of Virginia requires the parties to expressly state in their briefs the standard of review for each assignment of error in the appellate courts.  Rule 5:17(c)(6), 5:18, Rule 5:27(d), 5:28(d), 5:28(e)(2), 5A:12(c)(5), 5A:13, 5A:20(e), and 5A:21(d).  Below are the frequently utilized standards of review in the appellate courts:

  • De novo: This is the most favorable standard of review for an appealing or cross-appealing party. Black's Law Dictionary (10th Edition) defines de novo as "[a]new; afresh; a second time."  Its meaning in the appellate world is consistent with its literal translation—an appellate court ascribes no deference to the trial court's ruling and renders its own decision as if it were ruling on the issue in the first instance.  Appellate courts use de novo review for rulings on the law as opposed to rulings on the facts.  The logic behind this is that appellate courts are just as capable of evaluating a legal issue as a trial court that heard the evidence.  As examples, the appellate court is not required to give any deference to the trial court's interpretation of the common law, a Court rule, the Constitution of Virginia or the United States, a federal, state or local law, an administrative regulation, a contract, or a deed.
  • Deference to Factual Findings: Factual findings of a trial court and/or jury are ascribed significant deference at the appellate level. This is because a trial court and/or jury viewed the witnesses testify and observed their inflection, body language and mannerisms.  Thus, an appellate court is generally not as well-equipped to evaluate factual findings as a trial court and/or jury.  An appellate court will uphold the factual findings of a trial court and/or jury as long as the rulings are not plainly wrong or without supporting evidence.  The evidence will be viewed in the light most favorable to the trial court's and/or the jury's conclusions.  Code § 8.01-680; Collins v. First Union Natl. Bank, 272 Va. 744, 749 (2006).
  • Mixed Questions of Law and Facts: Assignments of error on appeal sometimes will involve questions of both law and fact. In such instances, factual issues underpinning the assignment of error will be upheld unless plainly wrong or without supporting evidence.  Legal issues will be reviewed de novoCollins, 272 Va. at 749.
  • Abuse of Discretion: On other issues, appellate courts recognize that a trial court is entitled to exercise its discretion and such rulings will not be disturbed as long as the trial court did not abuse that discretion, even if the appellate court would have made a different ruling if it decided the issue in the first instance. This standard of review considers the fact that trial courts are viewing the evidence being taken and have to consider practical and logistical realities that may not be apparent on the written record to an appellate court.  For example, trial court rulings on evidentiary issues, venue, sanctions, continuances, and other circumstances where a trial court has discretion on a matter are reviewed for abuse of discretion.  However, a trial court does not have boundless discretion.  If the trial court attributes too much weight to an irrelevant or improper factor, does not give significant weight to a matter that should have been considered or when the court reviews the proper factors but made a clear error in judgment, then the ruling may be reversed on appeal because the court has abused its discretion.  Lawlor v. Commonwealth, 285 Va. 187, 213 (2013).  The use of erroneous legal conclusions about the Court's discretionary authority or flawed interpretations of a legal rules may also constitute an abuse of discretion.    Legal conclusions underpinning an exercise of discretion such as interpretation of an evidentiary rule are reviewed de novoJohnson v. Commonwealth, 70 Va. App. 45, 49 (2019).

Far from an afterthought, the standard of review can make or break an appeal.  Litigators should pay close attention to the standard of review in crafting arguments for or against an appeal.  Keep an eye out for more articles on Appellate Law from Vandeventer Black in anticipation of the expansion of Court of Appeals's jurisdiction.


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