On July 22, 2025, the Virginia Court of Appeals issued a published order in Sisco v. Holtzman, Rec. No. 024025, clarifying the rules for assignments of error in appellate proceedings. Assignments matter. The Court of Appeals cannot reverse rulings that are not assigned as error. See Rule 5A:20(c)(1) (“Only assignments of error listed . . . will be noticed by this Court.”).
At issue was whether the appellant could include in his opening brief different assignments of error than those in his preliminary statement of assignments. The preliminary statement is due 15 days after receipt of the record by the Court of Appeals, while the opening brief is not due for another 25 days. Believing that a change to their preliminary statement was needed, the appellant in Sisco moved for leave to amend. The appellee objected, citing the alleged substantive nature of the changes and claiming prejudice from the amendment.
The Court granted the motion, but emphasized that, under recent amendments to the Rules of the Supreme Court of Virginia, the appellant did not need to request leave at all. As recently revised, 5A:19(b)(1) states, “[t]he appellant must file a preliminary statement of the assignments of error . . . within 15 days of the filing of the record.” They are only “preliminary.” Explaining the upshot of this adjective, Rule 5A:25(d) provides: “[i]n 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.”
Explaining further, the Court ruled that parties may revise, even add, assignments of error or of cross-error in their principal briefs unilaterally, without seeking leave of court. Yet the Court was quick to observe that its ruling did not give a party carte blanche to hide the ball. Anticipating that parties may be tempted to sandbag, the Court noted that it expects the “parties and counsel to act in good faith and to avoid gamesmanship” in their preliminary statements, and that Rule 5A:25(f) provided a “potential sanction for misconduct” of that sort, at least in cases requiring an appendix. It allows, “[t]o 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.”
The Court also observed that once the principal brief is filed, the assignments of error become fixed. At that point, they may not be substantively changed without leave of court. See Rule 5A:20(c)(4) (“Assignments of error listed in the opening brief of appellant are binding on the appellant for substantive purposes, unless the Court has granted a motion to amend.”). Parties should not expect to be given leave then, once briefing is well underway.
Concluding, the Court reasoned that the 2024 amendments were made to provide flexibility. And that “additional flexibility . . . accommodates the reality that the parties and their counsel usually develop a clearer and deeper understanding of how best to frame the issues by the time each side’s principal brief is due.” With this newly granted flexibility, parties should study the terms of their preliminary assignments of error, even after filing them, to ensure those assignments accurately identify the errors committed below.
