Defending an Appeal to the Superior Court

Congratulations! You won your case before the Court of Common Pleas, and you’re relieved that your long lawsuit has come to an end. But then you get the bad news: the other side has appealed to the Pennsylvania Superior Court. Can your hard-won victory be overturned by the appeals courts? What steps should you take to protect your verdict and ensure that it is not questioned, limited or reversed on appeal?

Appellate work is specialized, and the reasons the Court may reverse a verdict can be surprising.

The rules of appellate procedure can be complicated and appellate work is very specialized in Pennsylvania. A separate set of rules of Court apply to appeals, and these rules must be strictly complied with by both sides. But two important points should be understood from the beginning: first, the Superior Court can and does reverse verdicts from the Courts of Common Pleas. And second, it is both parties’ job to present the appeal. In other words, you can’t just sit back and ignore the appeal thinking that only the appealing party has work to do. You must be proactive to protect your verdict.

What steps can you take to protect your verdict? To help you understand what follows, here are a few terms you’ll need to know: “appellate” refers to the appeals process. An “appellant” is the party who is appealing the judgment that they lost. And an “appellee” is you, the party defending the judgment below.

1. Focus on the appellant’s arguments.

It might seem like a good idea, but bringing up all the other reasons you won your case is usually a distraction. A verdict winner who spends too much time arguing to the Superior Court about things the Appellant is not complaining about risks losing for failure to address the central argument being raised by the Appellant.

The Superior Court considers issues “waived” or “forfeited” if they are not addressed in depth, in writing by the Appellee. Sometimes frustrated that their victory is being questioned in a higher court, a verdict winner below will go to great lengths to point out all the reasons that they won the case. Doing so can often distract from the issues at hand.

It is the Appellant’s burden to prove to the Superior Court that they should have won below. They have to make the right argument, and those arguments are the ones that have to succeed. In other words, raising other issues can only invite more scrutiny into other problems with the record that aren’t being challenged on appeal. If the Appellant has raised an argument about evidence that should have been admitted, for example, it’s not wise to go to all of the other evidence necessarily that you think supports your case. It’s better to focus on proving that the challenged evidence they brought in should not have come in in the first place or would not have made a difference. Sometimes, this means looking to other evidence in the record, but usually it means focusing on the clause in the argument. Keeping the issues focused on what they want to talk about may seem counterintuitive, but it’s an important aspect on appeal.

2. Remember that any ground is sufficient to sustain your verdict.

The Appellant bears the burden of proof on appeal, even if they were the Defendant at trial. As the Appellee, you only have to show that there is some reason that you should still prevail. If the judge below did the right thing for the wrong reasons, you can still win if you show that their decision could be sustained on another ground. For example, if the judge refused to consider evidence that the Appellants wanted to present below, and that was kept out based on hearsay even though it wasn’t hearsay, you may still be able to succeed by showing the Superior Court that that evidence was not authenticated.

This alternative ground for supporting the trial judge’s decision not to consider evidence means that the judge was right, even if he did it for the wrong reasons. Be careful to look at the entire record in the light of showing that the challenged actions of the trial judge were valid for reasons other than the ones that the judge stated in his own opinion.

Of course, in many cases, the trial judge will have done the right thing for the right reasons, in which case you should focus on supporting that. Even so, providing another ground for any skeptical appellate judge reading the briefs might be helpful.

3. Remember that the briefs are everything on appeal.

It goes without saying that the appellate judges who are going to hear the case were not at your trial. Accordingly, they will have no idea what happened, other than what they are told in the briefs. It is surprising how often this simple rule is forgotten. The appellate judges’ job on appeal is to review the trial court’s opinion, the Appellant’s brief, the Appellee’s brief, as well as the reply brief or sur reply that are offered. This means that you should not assume that they will go back and read portions of the transcript not cited. You have to put in the fact section of your brief anything you think is relevant. You need to place in your procedural history anything you think they should consider. You need to raise any arguments you think will win the case for you. Don’t assume that they’re going to do your work for you.

In addition, some trial lawyers will try to rely on their oral arguments in front of a panel to secure the victory. But on appeal, briefs are the “meat,” and oral arguments are just the dessert. This means that you need to make sure that you have briefed everything you need them to consider before you get to oral arguments. Oral argument is for answering questions and emphasizing points that you think might have gotten lost in all of the briefing itself. Focus on writing excellent briefs.

4. Remember that the Superior Court is usually the last appeal.

You may be frustrated that your victory was appealed to the Superior Court, but remember that this is usually the last appeal. The Superior Court is not typically going to reverse cases; less than 10% of cases are successful on appeal. If the Superior Court panel assigned to your case affirms your verdict, the Supreme Court of Pennsylvania is very unlikely to take the case. And of course, the Supreme Court of the United States is almost certainly not going to take the case. This means that the Superior Court is typically the last appeal.

Accordingly, this is the time to go all out. Make sure to put every argument in that you think will help you succeed and focus on winning the case. If you’re successful here, this is probably the end of the line. And the reverse is also true: even if you won your trial, a loss at the Superior Court is not likely to be reviewed by any higher court. You’ll be stuck with it! For this reason, it’s extremely important to do the work and exhaust all of your options.

5. Consider consulting specialized appellate help.

Appellate work is very specialized work in Pennsylvania. The rules can be difficult to understand, and experience can make a big difference. Appellate work is totally different than trial work and relies on different skills. If you have been successful below but believe you need help sustaining a verdict on appeal, be sure to reach out to an appellate lawyer. An appellate lawyer can consult with your current counsel or take the case forward. Appellate counsel can help by seeing the case in a new light, helping you preserve your issues, and brief a winning case.

6. Consider cross-appealing.

Finally, if you won on some things at the trial court but did not win on others, consider whether you should cross-appeal. You have additional time to cross-appeal if the other side has chosen to appeal, but you still don’t have long. Talk with an experienced lawyer about whether you have any issues to bring to the Superior Court’s attention while they’re going to the trouble of hearing your adversary’s appeal.

Conclusion: Call an appellate lawyer today.

If you have a case on appeal and need some help, call the attorneys at Cornerstone Law Firm. Our attorneys can help you as consultants, for briefing, or in handling oral arguments. Our firm has had experience at every level of the Pennsylvania and Federal Appellate Court systems, and we would be happy to help you with your case. Call us for a consultation today.