The Virginia General Assembly recently made procedural changes to the signature requirement of pleadings. The new change says that pleadings that are not properly signed are defective and voidable. Though opposing counsel needs to raise an objection in a timely manner on the defective pleading in order for the pleading to be invalidated. The new procedure allows for the signature defect to be cured within a 21-day window after an objection to the pleading is raised. If the pleading is not cured within the 21-day window, then the pleading shall be invalid and stricken. The reasoning behind this new procedural rule as Del. Jay Leftwich explained is “The problem is a judge doesn’t know what to do with it because it doesn’t say what the consequence is. This tells you what the consequence is and how to fix it.” This new rule will become effective on November 23, 2020.
While in reality this new change in the rules will not affect many cases, the ones it will affect might cause troubling issues later on. Firstly, because of the 21-day window to cure such a defect is plenty of time for an attorney to simply “sign” the motion that was already filed and refile it. Secondly, this new rule seeks to create a uniform system of rules that are followed throughout the entire state. While this is mostly commendable and what we want from the judiciary. This change to the procedural rule takes away a judge’s discretion of what to do when there is a signature defect. Courts can be their own community in themselves. Over time a judge learns the reputation of a counsel who regularly appears in front of them. Because of this, A judge is likely to know more about the circumstances of why an attorney failed to sign a motion, and more willing to give attorneys or clients breaks when they deserved it. For example, a judge may have given an attorney who is well respected a break for simply failing to sign a pleading. Additionally, a judge may have been more willing to give an attorney who is completely useless a break when their client had a compelling case. The latter case is likely to be the most prevalent to fall victim to this new rule because of the long window to cure such a defect. For example, if a client had an extremely compelling habeas case, but had a really bad attorney handling the case; the client would not have their opportunity at justice by the strict language of the statute.
