W.Va. R. App. P. 10

As amended through January 31, 2024

Rule 10 - Briefs

(a)Format. In addition to the specific requirements in this Rule, all briefs and summary responses are required to:

(1) comply with the general format requirements and page limitations set forth in Rule 38; and

(2) avoid unnecessary use of personal identifiers as required by Rule 40(e).

(b)Time for filing and method of filing. Unless otherwise provided, briefs are due within the time frame set forth in the scheduling order. Typically, the petitioner's brief must be filed four months from entry of the final order being appealed, the respondent's brief must be filed forty-five days after the petitioner's brief, and any reply brief deemed necessary must be filed twenty days after the respondent's brief. The number of copies and page limitations for briefs and summary responses are set forth in Rule 38. Briefs and summary responses are deemed filed when they are received in the Clerk's Office in proper form, not when mailed.

(c)Petitioner's brief. The petitioner's brief shall contain the following sections in the order indicated, immediately following the cover page required by Rule 38(b).

(1) Table of Contents: If the brief exceeds five pages it must include a table of contents, with page references to the sections of the brief and the argument headings. The table of contents does not count toward the page limit for briefs.

(2) Table of Authorities: If the brief exceeds five pages it must include a table of authorities with an alphabetical list of cases, statutes, and other authorities cited, and references to the pages of the brief where they are cited. The table of authorities does not count toward the page limit for briefs.

(3) Assignments of Error: The brief opens with a list of the assignments of error that are presented for review, expressed in terms and circumstances of the case but without unnecessary detail. The assignments of error need not be identical to those contained in the notice of appeal. The statement of the assignments of error will be deemed to include every subsidiary question fairly comprised therein. If the issue was not presented to the lower tribunal, the assignment of error must be phrased in such a fashion as to alert the Intermediate Court or the Supreme Court to the fact that plain error is asserted. In its discretion, the Intermediate Court or the Supreme Court may consider a plain error not among the assignments of error but evident from the record and otherwise within its jurisdiction to decide.

(4) Statement of the Case: Supported by appropriate and specific references to the appendix or designated record, the statement of the case must contain a concise account of the procedural history of the case and a statement of the facts of the case that are relevant to the assignments of error.

(5) Summary of Argument: The summary of argument should be a concise, accurate, and clear condensation of the argument made in the body of the brief, and need not contain extensive citation to legal authorities. The summary may not be a mere repetition of the headings under which the argument is arranged.

(6) Statement Regarding Oral Argument and Decision: The brief must contain a statement as to whether oral argument is necessary pursuant to the criteria in Rule 18(a). If the party deems oral argument to be necessary, the party must indicate whether the case should be set for a Rule 19 argument or a Rule 20 argument, and why. If the party requests a Rule 19 argument, the party must state whether the case is appropriate for a memorandum decision. If the party requests that the case be set for oral argument and believes that the minimum time for argument set forth in Rule 19 or Rule 20 will not be sufficient, the party may request a specific amount of additional time for argument and explain why the party believes that good cause exists for granting additional time.

(7) Argument: The brief must contain an argument clearly exhibiting the points of fact and law presented, the standard of review applicable, and citing the authorities relied on, under headings that correspond with the assignments of error. The argument must contain appropriate and specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal. The Intermediate Court and the Supreme Court may disregard errors that are not adequately supported by specific references to the record on appeal.

(8) Conclusion: The brief must end with a conclusion, specifying the relief the party seeks.

(9) Certificate of Service: A certificate of service as required by Rule 37 must be attached to the end of the brief. The certificate of service does not need a page number and does not count toward the page limit for briefs.

(10) The following requirements must be observed when counsel in a criminal, habeas corpus, or abuse and neglect case is directed by a client to file an appeal where counsel lacks a good faith belief that an appeal is reasonable and warranted under the circumstances:

(a) Counsel must engage in a candid discussion with the client regarding the merits of the appeal. If, after consultation with the client, the client insists on proceeding with the appeal, counsel must file a notice of appeal and perfect the appeal on the petitioner's behalf. The petitioner's brief should raise any arguable points of error advanced by the client. Counsel need not espouse unsupportable contentions insisted on by the client, but should present a brief containing appropriate citations to the appendix and any case law that supports the assignments of error.

(b) In extraordinary circumstances, if counsel is ethically compelled to disassociate from the contentions presented in the brief, counsel must preface the brief with a statement that the brief is filed pursuant to Rule 10(c)(10)(b). Counsel should not inject disclaimers or argue against the client's interests. If counsel is ethically compelled to disassociate from any assignments of error that the client wishes to raise on appeal, counsel must file a motion requesting leave for the client to file a pro se supplemental brief raising those assignments of error that the client wishes to raise but that counsel does not have a good faith belief are reasonable and warranted.

(d)Respondent's brief. The respondent must file a brief in accordance with this subsection, or a summary response in accordance with subsection (e) of this Rule. The respondent's brief must conform to the requirements in subsection (c) of this Rule, except that no statement of the case need be made beyond what may be deemed necessary in correcting any inaccuracy or omission in the petitioner's brief, and except that the respondent need not specifically restate the assignments of error. Unless otherwise provided by the Intermediate Court or the Supreme Court, the argument section of the respondent's brief must specifically respond to each assignment of error, to the fullest extent possible. If the respondent's brief fails to respond to an assignment of error, the Intermediate Court or the Supreme Court will assume that the respondent agrees with the petitioner's view of the issue.

(e)Summary response. Instead of a brief, the respondent may file a summary response. A summary response need not comply with all the requirements for a brief set forth in this rule but must contain an argument responsive to the assignments of error with appropriate citations to the record on appeal, clearly exhibiting the points of fact and law being presented and the authorities relied on; a conclusion, specifying the relief the party seeks; and a certificate of service as required by Rule 37. A party who files a summary response is deemed to have consented to the waiver of oral argument.

(f)Cross-assignment of error. The respondent, if he is of the opinion that there is error in the record to his prejudice, may assign such error in a separate portion of his brief and set out authority and argument in support thereof in the manner provided in subsection (c) of this Rule. Such crossassignment may be made notwithstanding the fact that the respondent did not perfect a separate appeal within the statutory period for taking an appeal. If the respondent's brief contains crossassignments of error, the cover page of the brief must clearly so reflect. The petitioner may respond to the cross-assignment of errors in the reply brief.

(g)Reply brief. The petitioner may file a reply brief, which must comply with such parts of this rule applicable to the respondent, but need not contain a summary of argument, if appropriately divided by topical headings. If a timely-filed respondent's brief asserts cross-assignments of error, the applicable page limitation for a reply brief set forth in Rule 38 is extended to forty pages, and the time for filing a reply brief is automatically extended, without need for further order, until thirty days after the date the respondent's brief containing cross-assignments of error was filed. Unless otherwise provided by order, in cases where more than one respondent's brief is filed, the petitioner is limited to filing only a single reply brief that consolidates the reply to each of the responses. In cases where more than one response brief is filed, the page limitation for the reply brief under Rule 38 is automatically extended to thirty pages, without need for further order.

(h)Supplemental brief The Intermediate Court or the Supreme Court may, on its own motion or upon motion of a party, direct that supplemental briefs be filed addressing a particular issue or circumstance. Unless otherwise provided, supplemental briefs need only comply with such parts of this rule applicable that are appropriate under the circumstances.

(i)Notice of additional authorities. Whenever a party desires to present late authorities, newly enacted legislation, or other intervening matters that were not available in time to have been included in the party's brief, the party may briefly inform the Clerk by letter, with copy provided to opposing parties. If the Intermediate Court or the Supreme Court desires any further briefing or argument, it will so instruct by order.

(j)Failure to file brief. The failure to file a brief in accordance with this rule may result in the Intermediate Court or the Supreme Court refusing to consider the case, denying oral argument to the derelict party, dismissing the case from the docket, or imposing such other sanctions deemed appropriate.

W.va. R. App. P. 10

Last amended by Order dated November 24, 2015,1/1/2016; amended June 15, 2022, effective 7/1/2022.

Clerk's Notes on Rule 10

The addition of Rule 10(c)(10) is intended to provide counsel in criminal, habeas corpus, and abuse and neglect cases with guidance on the procedure to follow in light of syllabus point 3 of State v. McGill, 230 W.Va. 85, 736 S.E.2d 85 (2012) ("Pursuant to the principles contained in Rule 3.1 of the West Virginia Rules of Professional Conduct, an appellate remedy should not be pursued unless counsel believes in good faith that error has been committed and there is a reasonable basis for the extension, modification, or reversal of existing law.") The Rule encourages counsel to first engage in a candid discussion with the client regarding the merits of the appeal. Counsel has a duty to encourage the client to file an appeal that is reasonable and warranted under the circumstances. Should the client, after a candid discussion with counsel, insist on proceeding with the appeal despite counsel's contentions, counsel must file a notice of appeal and must perfect the appeal on the petitioner's behalf. Counsel should raise any arguable points of error advanced by the client. Rule 10(c)(10)(a)provides that counsel is not required to espouse unsupportable contentions insisted on by the client. Counsel must present such arguments succinctly referring to the portions of the record that support the assertions and citing to relevant case law. By insisting on a full presentation of the facts and procedure, this Rule provides protection to a client because it ensures that the client's arguments are fully advanced by counsel.

Rule 10(c)(10)(b) addresses situations in which counsel is ethically compelled to disassociate from the contentions raised on appeal. If counsel is ethically compelled to disassociate from the contentions raised in the brief, counsel may preface the brief with a statement that the brief is being filed pursuant to this Rule. If counsel is ethically compelled to disassociate from any assignments of error that the client wishes to raise on appeal and counsel does not have a good faith belief that those assignments of error are reasonable and warranted, counsel must file a motion requesting leave of Court to permit the client to file a pro se supplemental brief. This Rule ensures that counsel fully advances the client's arguments on appeal, but provides counsel with a means of disassociating from the contentions presented in the brief when the client insists on raising assignments of error that counsel does not have a good faith belief are reasonable and warranted.

In cases where a pro se supplemental brief is permitted by the Court, an amended scheduling order will set forth all relevant deadlines deemed necessary including the deadline for filing the pro se supplemental brief, the deadline for filing a response, and the deadline for filing a reply brief. The amended scheduling order will also set forth whether a pro se petitioner will be permitted to file a reply brief.

A brief filed pursuant to Rule 10(c)(10)(b) will be reviewed in the same course as all other appeals filed before the Court. Once the deadline for filing the reply brief has passed, the case will be considered mature for consideration and will be proceed pursuant to Rule 5(h) in a criminal case or habeas corpus case. The case will proceed pursuant to Rule 11(k) in an abuse and neglect case. It is important to note that counsel has a continuing obligation to serve as counsel of record in the case until the mandate has issued.

The amendment to Rule 10(g) applies to all cases and provides that the petitioner is prohibited from filing more than one reply brief unless permitted by order. This changes the Court's current practice of allowing the petitioner to reply to multiple response briefs or summary responses that have been filed. In the event of multiple responses to the petitioner's brief, the petitioner is permitted to file only one brief that consolidates the reply to each of the responses and the page limitation is automatically extended to thirty pages.