A while back, I attended a cocktail party where I ran into a fellow Pennsylvania appellate lawyer. After exchanging pleasantries, the conversation drifted to “what have you been up to?” I told him I was representing the appellee in the Superior Court and that I had a good waiver argument. With a knowing look, his immediate response was, “waiver…they love that.” Indeed, they do.
The general rule in Pennsylvania is that “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302. The corollary to that principle is that issues must be both raised and preserved for appellate review. Failure to raise and preserve an issue will result in a waiver of the issue on appeal.
Here are a few ways Pennsylvania trial lawyers can avoid waiving appellate issues:
- Timely object at trial. The failure to timely object at trial is a textbook example of how trial lawyers can waive issues. See Pa.R.E. 103.For example, there is a witness on the stand, the witness’s testimony is hearsay, but counsel is distracted and fails to object. The objection is waived and cannot be raised in post-trial motions or on appeal. See Pa.R.C.P. 227.1(b)(1); Pa.R.A.P. 302(a).
- Get the objection on the record. Sometimes things happen during a trial out of the earshot of the court reporter – a sidebar conference, a meeting with the judge in chambers. If there is any chance that the sidebar or conference could be an issue on appeal, counsel should make sure that it is transcribed. If the testimony is not part of the record, the claim is waived and cannot be reviewed on appeal.
- Move exhibits into evidence. During a busy trial, it can be easy to overlook the obvious – documents must be admitted into evidence. At trial, keep a checklist of the exhibits as they are authenticated and introduced, note any objections, and keep track of whether the judge admitted the exhibit.
- Be careful with stipulations. Trial judges like to get parties to agree on things. Trial court judges know that trials go more smoothly when the parties agree on the authentication of documents, qualifications of an expert witness, and document production. Judges also know that there are fewer potential issues on appeal if they make fewer rulings. But be careful – trial counsel’s agreement can result in a waiver of the right to challenge the order on appeal. See Commonwealth v. T.J.W., 114 A.3d 1098 (Pa. Super. 2015).
- Remember to amend the complaint. Under the Pennsylvania Rules of Civil Procedure, a party, either by agreement of the adverse party or with leave of court, may amend a pleading to change the form of the action, add a person or party, correct the name of a party, or otherwise amend a pleading. See Pa.R.C.P. 1033. Amendments may also be used to conform the pleading to the evidence offered or admitted at trial. Failure to amend a complaint can result in a waiver.
- Be sure to file a mandatory interlocutory appeal. In Pennsylvania, some interlocutory orders must be appealed during trial to avoid a waiver. Orders changing venue, transferring to another court, declining to proceed based on forum non conveniens, or refusing to compel arbitration, are among the orders that require an immediate appeal. See Pa.R.A.P. 311(g)(1).
- Timely file post-trial motions. The filing of post-trial motions is essential to preserve issues for appellate review. See Pa.R.C.P. 227.1(c). In Pennsylvania, post-trial motions must be filed within 10 days from the announcement of the jury verdict, or the filing of a decision or entry of a non-suit in a bench trial. When representing multiple corporate entities, post-trial motions must be filed by each entity against whom the jury entered a verdict. The filing of post-trial motions suspends the time for filing a notice of appeal until after the trial court rules on the motions. Post-trial motions not filed within 120 days are deemed denied. Pa.R.C.P. 227.4(1)(b).
- Include issues in Appellant’s Concise Statement of Errors on Appeal. In Pennsylvania, the trial judge may direct the appellant to file a concise statement of errors on appeal. Pa.R.A.P. 1925(b). The statement frames the issues for the trial court’s opinion. Issues not raised in the appellant’s Rule 1925(b) statement are waived and cannot be addressed on appeal. See Pa.R.A.P. 1925(b)(4)(vii). In a Children’s Fast Track Appeal, the 1925(b) statement must be filed with the Notice of Appeal. See Pa.R.A.P. 1925(a)(2)(i).
- Develop arguments and cite pertinent authority. The Pennsylvania Superior Court will dismiss an appeal or disregard arguments in appellate briefs that are not developed by citation to pertinent authority. See Pa.R.A.P. 2119(a), (b); Branch Banking and Trust v. Gesiorski, 904 A.2d 939, 942-943 (Pa. Super. 2006) (dismissing appeal).
Appeals are often won or lost in the trial court, not the appellate court. Keeping these tips in mind will help assure that issues are preserved for appellate review. For more appellate tips for trial lawyers, read my blog 8 Tips for Writing a Winning Appellate Brief.