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Perhaps one of the most important, yet most overlooked aspects of litigating the workers’ compensation case is the preparation of the brief following the close of the record. Section 131.101 of the Department of Labor and Industry’s Special Rules of Administrative Practice and Procedure Regulations sets forth the form that proposed findings of fact, conclusions of law and legal briefs or memoranda should take. Although the regulations provide for simultaneous submissions not later than 30 days following the close of the record, a workers’compensation judge can set whatever briefing schedule he feels is appropriate, and often does. Practitioners and clients alike on both sides of the aisle often find fault with the amount of time required for a petition to be litigated in its entirety. The bureaucracy in Harrisburg, in turn, is becoming increasingly interested in placing unworkable mandates on both WCJs and attorneys in an effort to speed up the process. However, the problem most often lies not with the manner of litigation while the record is open, but with the briefing process after it is closed. Given their vast caseloads, most WCJs will simply not even put a case in line for decision until both briefs are in. Therefore, when one party or both fail to submit a brief, it becomes fairly common for a case to take longer to be decided than it did to be litigated. That makes submission of the brief the single biggest factor in determining the amount of time a case will take from the filing of the petition to a final decision. However, given the similarly large caseloads of most practitioners, failing to submit a brief in a timely manner is often the path of least resistance in trudging through the daily deluge of obligations. Opposing attorneys, in turn, rarely press a WCJ for a decision in the absence of the other party’s brief due to the congenial nature of the practice and the knowledge that they may need their own courtesies regarding a late brief in the future. In an effort to ensure prompt submissions, some WCJs have recently taken to actually scheduling an additional hearing within 60 days of the close of the record for both briefs to be submitted via hand-delivery. My personal experience and human nature dictate that the briefs that come due in this fashion seem to get the most immediate attention. Based on this custom of increasingly more WCJs, perhaps a practitioner who has a specific interest in getting the speediest decision possible in a particular case can respectfully request that a WCJ re-list a case in this fashion to ensure both briefs will be submitted in a timely manner. This would be a way to avoid embarrassing one’s opponent while maintaining the proper deference to the client’s interests in a speedy decision. With respect to the form of the brief itself, Section 131.101 (h) of the regulations sets the minimum criteria for an acceptable brief. Many practitioners, especially ones that have been writing briefs from long before the promulgation of the most recent regulations, would be well served to read the rule and consider conforming their briefs to the model. Proper adherence to the regulations would make it easier for a WCJ to render an appropriate, timely decision and even adopt a party’s submission if appropriate. Basically, a brief should include five sections: a short statement of the questions involved; a statement of facts (or counter-statement); an argument; a short conclusion with the precise relief requested; and a proof of service. While the scope of this article is not to offer tips on brief writing, suffice it to say that all the aspects of writing any legal brief should be employed. Where citing to testimony, the citation should be to the page and, where appropriate, to the line. All statements of fact, especially those crucial to the ultimate issue, should cite specifically to the record and not be exaggerated or pulled out of context. Not abiding by these simple, universal standards would only make it more difficult for a WCJ to render a determination since seemingly outlandish statements would need to be verified and ultimately put back into context. Likewise, all conclusions of law should be supported by controlling authority, i.e., Pennsylvania Commonwealth Court or Supreme Court decisions. Taking blurbs out of the yellow “bible” to support one’s proposition without actually pulling the cited case and reading it should be unacceptable as an attorney should never rely on another’s interpretation of a legal proposition. While all briefs should be thorough and address all the relevant issues, it is also important not to make the brief unreadable. It is counterproductive to regurgitate entire transcripts in the brief. The WCJ will read the record independently and does not need the practitioner to reiterate the majority of the evidence in a submission that is supposed to aid the WCJ in deciding the case in the party’s favor. A more effective technique would be to simply state the key points the witnesses made and accurately apply those essential facts to the law. A WCJ will be much more inclined to consider (or actually read, for that matter) a brief that is not 100 pages long, with no particular focus. If the goal of the practice is to ensure swift and scholarly decisions, we must not overlook the substantial role the brief plays in that process. Rather than forcing the bureaucracy to find ways to limit attorneys’ roles in our legal practice, which it is in the troubling process of doing, the bar would be well served by taking matters into its own hands and making the preparation and submission of the brief the foremost priority. Christian Petrucci is past co-chairman of the Philadelphia Bar Association’s workers’ compensation section and is a partner at The Law Offices of John D. Pallante. Petrucci concentrates his practice in workers’ compensation and also counsels injured workers in matters involving employment discrimination and Social Security. He can be reached at [email protected].

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