From time to time, this column has discussed the efficiency of appellate courts in deciding cases that are ready for resolution. While recognizing the importance of that consideration — given that deciding appeals is the main reason appellate courts exist — it is also useful to acknowledge that there are various other considerations for which appellate courts are not directly responsible that can significantly delay an appellate court’s resolution of an appeal.
For example, in the Pennsylvania state court system, after a notice of appeal is filed in the trial court and the case is transmitted to the appellate court, the merits briefing of the appeal will not begin until after the trial court record is transmitted to the appellate court. And before the trial court record is transmitted to the appellate court, the trial judge must issue an opinion in support of the order or judgment being challenged on appeal.
In some cases, such a trial court opinion may already exist when the appeal is taken. In seemingly the vast majority of cases, however, the trial court judge will not write an opinion in support of the order or judgment on appeal until after a notice of appeal is filed. In most cases, it might take a few months for the trial judge to issue such an opinion. In more complicated cases, however, involving numerous claims, parties or potential appellate issues, it may take a trial judge upward of a year or even longer to issue an opinion.
Until the trial judge issues an opinion in support of the order or judgment on appeal, the briefing of the appeal cannot begin, even though the appeal remains pending at the appellate court during the time that the appellate court is awaiting the arrival of the trial judge’s opinion. Currently, I am working on a particular appeal pending in the Superior Court of Pennsylvania in which the notice of appeal was filed in the trial court November 18, 2010. My client, the appellant, then filed her timely statement of errors to be complained of on appeal December 16, 2010.
One year went by without any trial court opinion. Then another year went by without any trial court opinion. Finally, on October 1, the trial judge issued his five-page opinion in support of the order on appeal. Fortunately, this sort of lengthy, inexplicable delay occurs most infrequently, but it highlights a trial judge’s ability to hold the progress of an appeal hostage simply by taking forever to issue an opinion in support of the order challenged on appeal. In the appellate court’s defense, approximately 10 days before the trial judge issued his opinion, the Superior Court had issued an order directing the trial judge to issue his opinion within 30 days.
Although rare, the same sort of delay can occur in the federal court system, and an appellate court might not even notice it. Unlike in the Pennsylvania state court system, where trial judges commonly issue opinions only after an appeal has been taken and docketed at the appellate court, in the federal court system the filing of timely post-judgment motions serves to postpone the time when an appeal may properly be taken. Although infrequent, sometimes it takes a federal district judge around a year or longer to issue an opinion and order adjudicating such post-trial motions in cases that are otherwise ready for appeal. And, unlike in the Pennsylvania state court system, the federal appellate court is unlikely to even know of the existence of such a delay while it is ongoing, because ordinarily the time for appeal will not begin to run until the trial court has issued a ruling disposing of all timely-filed post-judgment motions.
I recently experienced another sort of delay in connection with an appeal a client of mine had pending at the U.S. Court of Appeals for the Third Circuit. Beginning in January, after the appeal had been fully briefed, the Third Circuit’s clerk’s office began its efforts to schedule the matter for a date on which the case would either be orally argued or submitted on the briefs. The Third Circuit’s procedure for assigning a disposition date to an appeal is particularly user-friendly. By that I mean the Third Circuit emails the attorneys in a case approximately three months before a disposition date to inquire about the attorneys’ availability. If the attorney for one side or the other is unavailable, then a similar email will issue about a month later asking about dates further into the future.
In this particular case, opposing counsel, whose offices are located just outside of the Third Circuit’s geographical boundaries, reported his unavailability not once, not twice, but three times, thereby preventing the case from being scheduled for oral argument for more than six months from when the case was initially ready for assignment. Finally, I contacted the Third Circuit’s calendaring clerk to complain that the Third Circuit’s ordinarily very accommodating system of scheduling cases for oral argument could seemingly be abused by counsel for the prevailing party in the trial court to avoid any appellate decision from ever issuing. Thereafter, the case was calendared for a disposition date nearly nine months after the case was initially ready for oral argument.
I have nearly reached the end of this month’s essay without mentioning what is probably the single greatest cause of appellate delay for which an appellate court does not bear primary responsibility — requests for extensions of time from the parties for filing appellate briefs. In cases where no extensions of time are requested, an appeal could be fully briefed within 90 days from when an appellate court has issued an initial briefing schedule order. However, if the opposing parties request an extra 30 days for filing each side’s principal brief, and the appellant requests an additional 14 days for filing a reply brief, the timeline for briefing an appeal may double to nearly 180 days.
Given the incredible importance that appellate briefing plays in determining the outcome of an appeal, given the complexity of many cases, given that multiple law firms and even multiple parties may be required to join in a single brief, and given the frequent appearance in important cases of appellate specialists who were not involved from the outset of the litigation, I think that both the Third Circuit and the Pennsylvania state appellate courts should be applauded for the relative leniency with which they grant extensions of time to file appellate briefs. Sometimes 30 to 40 days in which to prepare a lengthy and significant appellate brief is simply not enough time, and it is very much appreciated that both the Third Circuit and Pennsylvania’s state appellate courts are willing to grant extensions of those deadlines for good cause.
As explained above, there are times where appellate courts bear responsibility for delays in adjudicating cases, and other times when the responsibility for those delays lies elsewhere. Recognizing the potential sources of these delays, and their reasonableness and appropriateness, is important in evaluating the overall timeliness and efficiency of any appellate court system.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., and can be reached at 215-830-1458 and via email at email@example.com. You can access his appellate blog at http://howappealing.law.com and via Twitter @howappealing.