Working Public Policy Arguments into your Appellate Brief

If you’re appealing a case in Pennsylvania to the Superior Court, the Commonwealth Court, or the Supreme Court of Pennsylvania, you should consider how public policy considerations impact your appeal. Like most litigants, you care about the outcome of your case; you’re not necessarily worried about the future of Pennsylvania’s government or how generations of lawyers in the future will use the ruling in your case. But the judges who sit on appellate courts and listen to appeals all day long are very concerned about these issues. So how can you weave public policy into your briefing?

Some definitions to start with

If you’re a lawyer, you’re already familiar with the definitions in this section, so feel free to skip to the next one. But if you’re representing yourself or working with a lawyer, these definitions will help you as you work through the ideas in this article.

In every case that’s presented to an appellate court (that is, a court that hears appeals), there is a strong chance that the ruling the appellate court releases will become a “precedent” that governs future cases. A “rule” is the guiding principle that a court accepts in issuing a “holding” about the facts in your case. So, as an example, a court that decides that the “rule” that there are only 30 days to appeal a case is not changed by the fact that the lower court put the wrong date on its Order might issue a “holding” that your appeal is barred for failure to be filed in time. That case becomes a “precedent” for future cases.

“Public policy arguments” is a broad term that refers to considerations of how a ruling will impact the law. How will a ruling in this custody case create a precedent in similar cases that will impact other children and parents? Does a “per se” or “bright line” rule excluding evidence from warrantless cell phone searches give criminals a safe place to hide evidence? Although the judges may agree with the plaintiff that, in this case, the value of a person’s death should be higher than the typical economic measures, would making that ruling in this case open the door to endless litigation from other plaintiffs about the vague, non-economic value of life?

How can policy impact your case?

First, consider what public policies are most at the heart of your case. What are the things that stand out in your case morally and will set an important precedent for future cases? What are the national implications of the other side’s argument? How will their proposed rule, read against the facts of your case, harm other people in Pennsylvania if adopted? Cases that go to appellate courts can be cited or published as “precedential.” Precedential opinions are law. They make law. They affect the cases that follow them.

Accordingly, you have to look for the strong public policy considerations underlying your case and spend time considering how your rule is better than the other rule and then consider how to argue that your rule will help make cases easier to resolve and more just in outcome in the future.

Second, it is important for you to consider the implication of your position that you may not have thought about before. This means not only considering the positive implications but also some of the negative ones as well. Consider what the other side will say about the results that will come from following your rule in the future. If the rule that you are advocating can result in difficult outcomes in other cases, consider why it might still be fair and how to argue to the panel of judges that will side your case that it is in the best interest of the Commonwealth to adopt or maintain the rule that is you.

Finally, be sure to consider this argument on those of different political persuasions that yourself. Sometimes litigants can lose sight of the fact that half of the country disagrees with the other half of the country! Judges are no different. When arguing a case, it is important to consider how your public policy arguments will affect judges across the political spectrum as they attempt to filter the legal arguments made through all the potential political implications as well.

Policy also considers how judicial philosophies might differ. A judge with an “originalist” bent may see the world differently than a judge with a pragmatic bent. Although both are attempting to get to the best rule in the case, both may find some arguments stronger or weaker based on their judicial philosophy. You should consider whether your policy argument rings hollow with one philosophy or the other.

Conclusion: Talk to a Pennsylvania appellate lawyer

If you have a case that is being appealed to the Superior Court, Commonwealth Court, or the Supreme Court of Pennsylvania, call the Pennsylvania appellate attorneys at Cornerstone Law Firm. Our attorneys can help you to figure out how public policy works for or against your case and help you to devise arguments that are appropriate and advocate for proper advancement in the law.