Clients who are unfamiliar with appeals may have questions about the appellate process. While trial lawyers often are portrayed in books, movies, and other popular culture, appellate attorneys are less understood.
The following overview of appeals in Pennsylvania addresses the most frequently asked questions about this process. The answers to these questions are for general information only and should not be construed as legal advice.
Pennsylvania has three courts of appeal: the Superior Court, the Commonwealth Court, and the Supreme Court. The Superior Court and the Commonwealth Court both hear appeals from the Courts of Common Pleas, which are Pennsylvania’s trial courts.
Most civil cases, including family law and personal injury cases, are appealed to the Superior Court. Cases in which an agency of the Commonwealth of Pennsylvania is a party, or that involve the interpretation of a state statute, are appealed to the Commonwealth Court.
In Pennsylvania civil cases, parties who lose an appeal in the Superior Court or Commonwealth Court cannot appeal as of right to the Supreme Court. Instead, the party files a Petition for Allowance of Appeal (also called a Petition for Allocatur) asking the Pennsylvania Supreme Court to take the case on appeal.
In the federal system, appeals from the Eastern, Middle, and Western Districts of Pennsylvania are to the Third Circuit Court of Appeals. Appeals from the Third Circuit Court of Appeals are to the United States Supreme Court. Civil appeals to the United States Supreme Court are also by permission, which is obtained by filing a Petition for Certiorari or “cert petition.”
A brief is a written submission to the appellate court. There are two principal briefs: the brief of the appellant and the brief of the appellee. The brief of the appellant is filed by the party seeking to overturn the trial court’s decision. It is sometimes referred to as the “opening brief.” The brief of the appellee is filed by the party seeking to uphold the trial court’s decision. The appellant may also file a reply brief that responds to the arguments in the brief of the appellee.
The appellate rules set forth strict requirements for the contents of a brief. The rules include requirements governing the organization and contents of the brief, references to the record, table of contents, table of authorities, and the like. A brief must include references to authority to support the party’s argument. Legal statements must be supported by a citation to a statute or case supporting the proposition. Factual statements must be supported by a citation to the trial court record.
Although called a “Brief,” appellate submissions generally run from 20-50 pages, double-spaced, and contain tables of contents, tables of authorities, footnotes, and exhibits. They are rarely very “brief.” Appellate courts typically have page limits or word limits for briefs, which are set forth in the appellate rules and are strictly applied.
Appellate brief writing involves both creativity and skill. There is skill in framing an argument and creativity in presenting that argument to the court. A winning appellate brief must be three things: it must be compelling, cogent, and clear.
A compelling brief tells a story. It grabs the reader from the beginning and gives him or her a reason to keep reading. Judges (and their clerks) are people. Although they decide cases based on the law, judges are aware that their decisions affect people’s lives. A winning appellate brief gives the judges a compelling reason to want to find in your favor.
The dictionary defines “cogent” as “appealing forcibly to mind or reason…convincing…pertinent…relevant.” A cogent brief is one that sets forth a convincing argument, supported by pertinent authority and relevant facts. The brief should be broken into headings and subheadings, and every statement should be supported by either a cite to authority or the trial court record. Unsupported argument might sound great when spoken in a courtroom, but it will not suffice in an appellate brief.
Finally, the writing needs to be clear. A good appellate brief writer knows that organization matters. Short sentences are better than long ones. Avoid the passive voice. Appellate judges read lots of briefs every day, many of which are a chore to read. A short, punchy brief with an active writing style will be a refreshing change. It will also make it much easier for the judges to understand an argument and more likely to decide in your favor.
An appellate brief should also contain a conclusion that clearly explains what the appellant or appellee wants the court to do — affirm, reverse, dismiss, and/or remand to the trial court.
Oral argument is an opportunity for the appellate lawyer to convince the court that the trial court did (or did not) make a mistake requiring reversal. In Pennsylvania, oral argument in the Superior and Commonwealth courts is before a panel of three or more judges.
An appellate panel will hear many appeals in a day. The cases are put on a list, and each one is argued. When the case is called, counsel for the two parties move to the front of the courtroom and sit at tables facing the judges. The lawyers take turns arguing, with counsel for the appellant going first.
Arguments are made standing at a podium with a microphone. Each party is given a limited number of minutes to argue. Counsel for the appellant may choose to reserve some of the allotted time for rebuttal, which gives appellant’s counsel an opportunity to respond to the appellee’s argments. During oral argument, the appellate judges may ask counsel questions about the law or the facts of the case.
Clients are often present for oral argument. Many clients find it worthwhile to see how their case is presented to the appellate court and to hear the judges’ questions. If you decide to attend the oral argument, you should expect to spend a good part of the day sitting in the courtroom listening to oral arguments in many different cases before yours is called.
Some appeals are disposed of by an order dismissing or quashing the appeal. When that happens, the appeal is over within a few weeks or months of the filing of the notice of appeal.
Once the appeal is fully briefed and argued, the court still needs time to decide the case and write an opinion. In Pennsylvania, the current rule of thumb is that it takes about a year for an appeal to proceed from the filing of a notice of appeal to the entry of a final order.
The likelihood of success on appeal depends on many factors. Many appeals are dismissed for procedural errors. As discussed above, an appeal will be quashed or dismissed if it isn’t timely filed or if the order is not an appealable order. Because the appellate rules are filled with traps for the unwary, an attorney’s familiarity with the appellate process will reduce the likelihood of a dismissal based on a procedural defect.
The other factor that plays a large role in the success of an appeal is whether the issue on appeal is an issue of law or an issue of fact. Again, as discussed above, the appellate courts are more likely to reverse for a legal error than a factual error.
The likelihood of success on appeal depends on the particulars of your case. An experienced appellate attorney may be able to give you a general assessment of the merits of the appeal but can never predict the outcome with complete certainty.
At the conclusion of an appeal, the appellate court will enter an order and issue an opinion. The order determines who wins and who loses and what happens next. The opinion explains the legal and factual basis for the court’s decision.
If a trial court order or judgment is affirmed, the appellee has won on appeal, and the trial court judgment stands. If the trial court is reversed, the appellant, who lost at trial, is now the winner. When the appellate court finds that the trial court made an evidentiary error, it may reverse and remand, which may result in a completely new trial.
The cost of an appeal depends on the complexity of the case and the size of the trial court record. If the trial took place over many days or weeks, it will take the appellate attorney a significant amount of time to review the trial transcript and the evidence.
If the case involves many different legal issues, or novel or complicated issues, the process of researching and writing the appellate briefs can be very time consuming. It is not uncommon for an appeal to involve 100 hours or more of attorney time.
At Appellate Law Group, we understand that clients need to know what an appeal will cost. We will gladly prepare an appellate budget for a client or arrange for alternative payment plans. We also accept major credit cards.