Preventing Waiver on Appeal

As you prepare your appeal in the Superior Court or Commonwealth Court in Pennsylvania, how do you avoid waiver or forfeiture? Here are three common mistakes that people make that cause waiver and forfeiture.

First: Be sure to include citations to the trial record.

When you’re bringing an appeal in Pennsylvania state court, our courts require citations to the record. This means that it’s not enough to simply assure the Court that you properly preserved something below. Best practices require a citation to the designated record demonstrating the fact and issue preservation that you’re relying on. If you made a timely objection at trial, be sure to list that in the trial record. You should also put where you listed in the post-trial briefing so that the judge or a clerk can make easy reference to the record to see that what you are saying is correct.

Although the Court does not always punish litigants for weak citations in the fact sections, they can! More importantly, strong citations to the record garner credibility for you as a litigant. It shows thoroughness and gives the Court confidence in relying on your representations. This is especially true if the other side’s citations are weak. Accordingly, it’s important that you preserve with proper citations all the places that you believe your issue reservation below occurred.

Second: don’t undercook that argument!

Once you’ve laid out your argument and found your ground for appeal, it’s extremely important that you do the research and follow it up with citations to caselaw, a detailed explanation of how the cases support you, and distinguish your bad cases.

Once again, it’s not enough to slap together an explanation of why you think the judge below was wrong. You need to explain why the caselaw supports your position and lay it out for the Court. It is not the job of the appellate judges to go looking for caselaw to support your argument that they feel might be right. It’s your job to lay it out for them in a way that they can duplicate and use in their opinions. Give them what they need and be sure to develop the argument.

A good appellate argument will also wrestle with the weaknesses in your argument. It should acknowledge where your arguments are weak, and it should point out opportunities to appropriately develop the law in Pennsylvania for the future. Put in your caselaw, reference your source materials, and explain to the Court how it is that you win the case.

Third: be sure to meet your deadlines.

Of course, this might be the simplest one of all and the most obvious. Nonetheless, a number of cases are dismissed every year for failure to meet deadlines, failing to file a brief on time with paper copies submitted, or failing to meet one of the other deadlines in the Rules of Appellate Procedure. These mistakes can result in waiver of your entire case. Of course, there is some grace built into some of the deadlines, and many times, the Superior Court will give you additional chances to correct your mistake, but it’s best not to rely on that.

Conclusion

Contact the appellate lawyers at Cornerstone Law Firm. If you’re concerned about how to bring your appeal properly and how to avoid waiver, or if you need additional help, consider contacting Cornerstone Law Firm to take over your appeal or to work as co-counsel. Our attorneys have experience throughout the appellate process in Pennsylvania, and we’d be happy to go to work for you and your clients.