Pennsylvania Bar Association Midyear Meeting 2016

HOW PENNSYLVANIA’S APPELLATE COURT JUDGES SEE IT

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The Pennsylvania Bar Institute PBI is a self-supporting nonprofit corporation chartered in 1965 under the guidance of the Pennsylvania Bar Association for the following purposes:

• The design, promotion and administration of cooperative programs in legal research, to the end of furtherance and betterment of the administration of justice in Pennsylvania and elsewhere.

• The development, promotion and administration of cooperative programs for continuing legal education and education of the interested public in law and related subjects.

PBI is dedicated to excellence in continuing legal education and aims to provide a comprehensive curriculum of post-admission studies under competent instructors with course materials of immediate and continuing use in practice. PENNSYLVANIA BAR INSTITUTE 5080 RITTER ROAD MECHANICSBURG, PENNSYLVANIA 17055-6903 800/932-4637 OR 717/796-0804 E-MAIL: info@pbi.org WEBSITE: http://www.pbi.org

Susan L. AndersonBryn Mawr

Sara A. AustinYork

John J. BagnatoJohnstown

William G. BoylePittsburgh

G. Daniel CarneyPittsburgh

Chester C. Corse, Jr.Pottsville

H. Robert FiebachPhiladelphia

Joseph P. Flanagan, Jr.Philadelphia

Pennsylvania Bar institute

Board of Directorsmay 2015–2016

Officers

President: Seth A. Mendelsohn, Harrisburg

Vice President: Gail P. Granoff, Philadelphia

secretary: Hon. Bonnie B. Leadbetter, Blue Bell

Treasurer: Dennis A. Whitaker, Harrisburg

immediate Past President: Hon. Mark A. Kearney, Philadelphia

Past President: Penina Kessler Lieber, Pittsburgh

PasT PresidenTs (hOnOrary direcTOrs)

direcTOrs

Norris E. Benns, Jr.Philadelphia

Hon. Mark I. BernsteinPhiladelphia

Jay A. BlechmanPittsburgh

Joel R. BurcatHarrisburg

Nancy ConradCenter Valley

Pamela F. CrossHarrisburg

Hon. Thomas M. Del RicciNorristown

Hon. Maureen E. Lally-GreenPittsburgh

Sharon R. LopezLancaster

Jacqueline B. MartinezPittsburgh

R. Burke McLemore, Jr.Harrisburg

David G. RiesPittsburgh

David E. SchwagerWilkes-Barre

Barry M. SimpsonHarrisburg

Hon. Robert SimpsonNazareth

Richard H. GallowayGreensburg

F. Hastings Griffin, Jr.Newtown Square

James L. HollingerNorristown

Hon. Lawrence W. KaplanPittsburgh

Stephanie F. LatimoreHarrisburg

Hon. Francis J. Leahey, Jr.Ebensburg

James R. LedwithBerwyn

Marvin S. LieberPittsburgh

Thomas S. MansellNew Castle

Jane R. MaughanStroudsburg

Edwin L.R. McKeanErie

William H. MurrayCape May, NJ

Herbert R. NurickHarrisburg

Hon. William H. PlattAllentown

Robert RaphaelPittsburgh

Marvin J. RudnitskySelinsgrove

William Z. Scott, Jr.Bethlehem

Ruth M. SiegelHershey

Stanley H. SiegelLewistown

Lee C. SwartzLemoyne

Paul C. TroyNorristown

Nancy Hopkins WentzNorristown

Thomas G. Wilkinson, Jr.Philadelphia

execuTiVe direcTOr

Richard L. McCoy5080 Ritter Road, Mechanicsburg, PA 17055717-620-6285 or 800-932-4637 ext. 2285 • rmccoy@pbi.org

Donald F. Smith, Jr.Reading

Rhodia D. ThomasHarrisburg

Elizabeth R. TriscariHarrisburg

Kathleen D. WilkinsonPhiladelphia

Brett M. WoodburnHarrisburg

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iii

Biographies

FACULTY

Hon. Susan Peikes Gantman President Judge Gantman was elected a judge of the Superior Court of Pennsylvania in 2003. She is currently the President Judge of the Superior Court of Pennsylvania, serving a term from January 2014 to December 2023. Prior to being elected a judge, President Judge Gantman was co-chair of the Family Law Section at Cozen O’Connor. Prior to that, she was a Partner at Sherr, Joffe & Zuckerman. President Judge Gantman has received numerous awards, including Woman of the Year in 2014 by The Legal Intelligencer, the Pennsylvania Bar Association Commission on Women in the Profession Anne X. Alpern Award, the Margaret Richardson Award from the Montgomery County Bar Association and the Outstanding Service Award from the Montgomery County Office of Children and Youth. She is a member of the American, Pennsylvania and Montgomery County Bar Associations. She is a member of the PBA Women in the Profession Committee as well as the Children’s Rights Committee and Appellate Advocacy Committee. President Judge Gantman is also a member of the National Association of Women Judges. President Judge Gantman received her B.A., cum laude, and M.A. from the University of Pennsylvania and her J.D. from Villanova University School of Law. Her chambers are located in Montgomery County.

Hon. Debra M. Todd Justice Todd is a 1979 Honors graduate of Chatham College and a 1982 Law Review graduate of the University of Pittsburgh School of Law. In 2004, Justice Todd was awarded the LL.M. Degree in the Judicial Process from the University of Virginia School of Law. From 1982 through 1987, she was an in-house litigation attorney for U.S. Steel Corporation. She maintained a trial practice in the City of Pittsburgh from 1987 through 1999 with an emphasis in complex civil litigation. Justice Todd is an elected member of the Academy of Trial Lawyers of Allegheny County and an alumna and former board member of the Leadership Pittsburgh Program. She is a member of the Allegheny County, Pennsylvania and American Bar Associations, and is a fellow of the Allegheny County Bar Association Foundation. She is a member of the American Judicature Society, the National Association of Women Judges, the International Association of Women Judges, and the Women’s Bar Association of Western Pennsylvania. Justice Todd has been a lecturer and panelist for continuing legal education programs on trial and appellate practice and procedure. She presently serves as a board member of the Finnegan Foundation and Pittsburgh Action Against Rape. After serving as a Judge on the Superior Court of Pennsylvania from 2000 through 2007, Justice Todd was elected to the Supreme Court of Pennsylvania in November 2007, and commenced service on the Court in January 2008. Her chambers are in Pittsburgh.

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Appellate Advocacy

Submitted by: Hon. Susan Peikes Gantman President Judge, Superior Court of Pennsylvania West Conshohocken Hon. Debra M. Todd Supreme Court of Pennsylvania Pittsburgh

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Appellate Advocacy Justice David N. Wecht Supreme Court of Pennsylvania

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Overview

The Basics Pennsylvania’s appellate courts Appealable and non-appealable orders Common progression of an appeal Waiver

Writing Appellate Briefs What must be included in an appellate brief? How to write briefs that persuade What are judges looking for in an appellate brief?

Oral Argument

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The Basics

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The Supreme Court

The Supreme Court has exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following classes of cases:

(1) Matters prescribed by general rule (2) The right to public office (3) Matters concerning the qualifications, tenure, right to serve, of any member of the judiciary (4) Automatic review of sentences relating to review of death sentence (5) Supersession of a district attorney by an Attorney General or by a court or where the matter

concerns the supervision, administration, or operation of an investigating grand jury (6) Matters concerning the power of the Commonwealth to create or issue indebtedness (7) Matters where the court of common pleas has held invalid as repugnant to the Constitution,

treaties or laws of the United States, or to the Constitution of the Commonwealth, any provision of the Constitution of, or of any statute of, the Commonwealth (8) Matters where the right to practice law is drawn in direct question

42 Pa. C.S. § 722.

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The Supreme Court

The Pennsylvania Supreme Court provides discretionary review by grant of a petition for allowance of appeal over final orders issued by the Superior or Commonwealth Courts.

42 Pa. C.S. § 724.

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The Commonwealth Court

The Commonwealth Court has exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:

(1) Commonwealth civil cases (2) Governmental and Commonwealth regulatory criminal cases (4) Local government civil and criminal matters (5) Certain private corporation matters (6) Eminent domain (7) Immunity waiver matters (8) Direct appeals from government agencies

42 Pa. C.S. §§ 762, 763.

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The Superior Court

The Superior Court handles such appeals from the Courts of Common Pleas as are not within the jurisdiction of the Commonwealth Court, and it exercises original jurisdiction only to the extent it is ancillary to its appellate jurisdiction (except in certain habeas matters).

42 Pa.C.S. §§ 741, 742.

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When is an order appealable?

If an order is final, it is appealable. Pa.R.A.P. 341.

If an order is collateral, it is appealable. Pa.R.A.P. 313.

If an order is within the set “of right” interlocutory orders, it is appealable (some of which may require special steps to be taken). Pa.R.A.P. 311.

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When is an order appealable?

For all other orders, there needs to be a determination by the court that:

“Immediate appeal would facilitate resolution of the entire case” Pa.R.A.P. 341(c); Or

That the order “involves a controlling question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from the order may materially advance the ultimate termination of the matter” 42 Pa.C.S. § 702(b).

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Examples of Non-Appealable Orders

Generally, pretrial orders are considered interlocutory and not appealable. Commonwealth v. Matis, 710 A.2d 12, 17 (Pa. 1998).

Order granting severance of criminal informations is not a final order. Commonwealth v. Smith, 544 A.2d 943, 945 (Pa. 1988).

Denial of pretrial habeas corpus petitions based on the insufficiency of evidence not appealable, absent a showing of exceptional circumstances. Commonwealth v. Hess, 414 A.2d 1043, 1047-48 (Pa. 1980).

Juvenile review order that maintains the status quo. In re M.D., 839 A.2d 1116, 1121 (Pa. Super. 2003).

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Some collateral orders may be waived if not immediately appealed

1) the order must be separable from and collateral to the main cause of action;

2) the right involved must be too important to be denied review; and

3) the question presented must be such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313.

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Typical Progression of an Appeal

Notice of appeal is filed

Supersedeas is posted

Civil docketing statement is issued

1925(b) statement is ordered

Trial court opinion is issued and record is sent

Briefs and reproduced record

Argument

Decision

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01

Waiver

To get your case decided on the merits:

Make a proper record in the trial court

Ensure transmission of a complete record to the appellate court

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The tipsy coachman doctrine

“It is well settled that this Court may affirm the decision of the immediate lower court on any basis, without regard to the basis on which the court below relied.”

Donnelly v. Bauer, 720 A.2d 447, 454 (Pa. 1998).

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The tipsy coachman

The pupil of impulse, it forc’d him along,

His conduct still right, with his argument wrong;

Still aiming at honour, yet fearing to roam,

The coachman was tipsy, the chariot drove home.

Oliver Goldsmith, Retaliation

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Writing appellate briefs

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Contents of briefs

Statement of jurisdiction (Pa R.A.P. 2114) Order or other determination in question (Pa R.A.P. 2115) Statement of the scope and standard of review (Pa R.A.P. 2111) Statement of the questions involved (Pa R.A.P. 2116) Statement of the case (Pa R.A.P. 2117) Summary of the argument (Pa R.A.P. 2118) Argument for appellant (Pa R.A.P. 2119) A short conclusion stating the precise relief sought Trial court opinion

Appellant’s Brief:

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Style

Write clear, brief sentences (with few dependent clauses)

Brevity can be a weapon of persuasion

Cite to the most directly applicable case early

Do not explain well-accepted points of law at length

Careful proofreading (ideally by another person)

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“One final caveat is appropriate. Defendant asked for and was mercifully granted leave to file an oversized brief by this court. The brief was desultory in nature; in general a poorly written product with numerous typographical errors. It was

obviously never edited by a caring professional. As a panel of judges already overburdened with cases and paper, we find it insulting to have to dutifully comb through a brief which even

its author found little reason to give such attention. We condemn this type of shoddy professionalism.”

United States v. Devine, 787 F.2d 1086, 1089 (7th Cir. 1986).

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Style

Use active, not passive, verbs

Limit adjective use Overuse of clear, obvious or well established may suggest the opposite

Avoid jargon when plain English is just as clear

Tell the reader where he is going before you take him there

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Argument Development

Limit the issues

Prioritize the issues (start with the most compelling)

Address each of the “questions presented” in the argument section of your brief

Identify the controlling authority If yours is a case of first impression, tell the court what other jurisdictions have done

Acknowledge and explain weaknesses in your case

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“Appellate work is most assuredly not the recycling of trial level points and authorities.”

–In re Marriage of Shaban, 88 Cal.App.4th 398 (2001).

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Waiver

A brief must contain a developed argument augmented by citation to pertinent authorities. Pa.R.A.P. 2119(a).

Issues not included in your concise statement of the errors complained of on appeal are waived. Pa.R.A.P. 1925(b)(4).

A Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all. Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super. 2001).

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Be mindful of limits upon appellate courts

Consider the court’s standard and scope of review

Appellate courts are often bound by the facts found by the court below

Appellate courts generally cannot raise issues sua sponte

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Oral Argument

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Oral Argument

Have a theme that ties your case together

Try to be an intellectual peer of the judges. Know the law.

Don’t argue your weak issues

This may be your last chance to affect the court’s decision Appellate judges often vote on your case after leaving the bench

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01

Be prepared to listen

Appellate judges are engaging in a discussion with you, and with each other

Listen and read the judge’s questions and body language

Answer the question that was actually posed (not the one you wish you were asked)

The appellee should particularly note the court’s reaction to appellant’s arguments

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Demeanor

Do not risk your credibility

Do not be afraid to pause before answering a question

Do not be defensive Be willing to concede a point that hurts your case

Make eye contact with the entire panel

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Timing

Avoid spending too much time reciting the facts of the case

The judges have already read the briefs

You have the judges’ highest level of attention during the first few minutes

Jump straight into the most important points

When you are asked a question, address it immediately

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Q&A

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