Tips, Pitfalls from Judge GantmanMay 5, 2009 Philadelphia Bar Reporter
This article is posted here with the permission of the Philadelphia Bar Reporter.
Effective appellate advocacy skills can substantially increase a practitioner’s chance of success, Pennsylvania Superior Court Judge Susan Peikes Gantman told members of the Family Law Section at an April 6 meeting where she offered tips and presented pitfalls to avoid.
Any Superior Court case actually begins on the first day of trial. If evidence is not included in the trial record, then it is not preserved and not available for use on appeal. One example is a motion in limine, which is sometimes presented to the trial judge on the first day of trial. Judge Gantman strongly recommended filing the motion in limine with the Clerk’s office to ensure its inclusion in the trial record.
Addressing the 1925(b) Statement of Errors Complained of On Appeal, Judge Gantman advised that most cases should have only two issues. As the Superior Court is an error-correcting court, practitioners must frame their issues accordingly. Judge Gantman reminded practitioners of the new Children’s Fast Track rules that require the 1925(b) Statement to be attached to the Notice of Appeal.
Prior to oral argument, Judge Gantman recommended making a visit to the courtroom. This will provide a level of familiarity with the surroundings and help avoid presentation of any exhibits that may not be visible to the judges as the bench is physically set up very high. The Superior Court hears oral arguments in Philadelphia, Harrisburg and Pittsburgh. Panels consist of three judges. During argument, the presiding judge, who is typically the most experienced, sits in the middle of the panel.
Judge Gantman also recommended familiarization with the assigned Superior Court panelists for a variety of reasons. For example, some of the judges are strict with time constraints, while others are more liberal. In selecting a time frame for oral argument, Judge Gantman strongly recommended to avoid the expedited list, which allows only five minutes. By selecting the standard list, even if the practitioner does not use the allotted 15 minutes, time pressure to complete the argument will not be a factor. Judge Gantman warned against citing cases decided by the judges on the panel, unless that case is directly on point. Citation of any case that is not pertinent to the issue on appeal will only undermine the overall case.
The Pennsylvania Superior Court is a “hot bench.” Although the judges do not meet in advance of argument to discuss the pending cases, they thoroughly review all the cases before taking the bench for oral arguments and each judge preliminarily knows how he or she will rule. Questions posed by one judge on the panel to practitioners during argument may actually be for the benefit of another panelist for the purpose of convincing him or her of a certain result. Also, Judge Gantman noted that objections are not permitted during oral argument. Judge Gantman makes a practice of checking for updated cases just before oral argument. Practitioners should do the same.
Included in Judge Gantman’s top 10 list of tips for appellate advocacy were the following: timely file the 1925(b) Statement, with particular attention to the new Children’s Fast Track rules; protect the record with timely, specific objections; avoid hyperbole and misrepresenting case holdings; Shepardize cases; present two, but no more than four, issues for appeal; do not rehash facts of the case during oral argument; and, use only the time requested for oral argument.