by Shohin Vance

The first stage of your case is over and much to your disbelief, the trial court has denied relief.  Intending to seek review, you have filed a timely Rule 1925 Statement and are now preparing to file your appellate brief.  So, what should your strategy be?

Most appellants simply identify the various aspect of the lower court’s decision with which they take umbrage and present the legal basis for their position.  At first blush, this approach appears sensible; after all, parties are entitled to review by an independent tribunal and if a certain holding or determination was in error, shouldn’t a party seek its correction?  Maybe so, but simply highlighting all of the deficiencies in the lower court’s ruling is problematic because direct appeal – despite being conferred as a matter of right rather than discretion – is not a stage for re-litigating your case.  Certainly, there are the familiar strategic reasons for not regurgitating all of your legal arguments from below (such as not detracting from strong arguments by presenting weak ones), but those considerations aside, there are two compelling legal principles that come into play: the standard of review and, to a somewhat lesser extent, the scope of review.  While not foreign to most practitioners, these concepts often receive inadequate attention.  Perhaps because of the boilerplate fashion in which courts recite their standard and scope of review at the outset of every opinion, there is a tendency among practitioners to either ignore it completely or, at best, make fleeting references to it.  Presently, my focus is on the standard of review.

To be clear, most appellants understand the standard of review, but merely understanding it is not enough.  It is also crucial that the arguments are framed in terms of that standard because it is the lens through which every judge and clerk will be assessing the merits of the case.  For instance, if the ruling that is being challenged is reviewed for abuse of discretion, it is not enough to show that you were “right” and the lower court should have decided the issue in your favor.  Rather, it is imperative that you demonstrate precisely how the lower court abused its discretion.  The pages of the Atlantic Reporter are lined with opinions from Pennsylvania’s intermediate courts acknowledging the arguable merit of a party’s argument and conceding that they may have decided a particular issue differently if it had been before them in the first instance.  Accordingly, in addition to outlining the substantive law governing the specific matter in dispute, it would be advisable to present case-law on analogous situations that the appellate court expressly found an abuse of discretion.

The de novo standard is obviously less exacting in many ways, as it permits the court to examine the issue anew with no deference owed to the decision below.  However, proceeding along that paradigm requires attention to a number of other factors.  First, the issue should be framed from the outset in terms of the de novo rubric and, if there is any doubt as to its applicability, that uncertainty should be dispensed with (to the extent possible) before turning to the underlying matter.  Stated differently, don’t assume that the appellate court knows that it should review your case de novo.

Finally, there is also room for creativity.  Some issues that ordinarily call for deference, can be couched in a way that implicates the de novo standard.  Moreover, the Supreme Court has increasingly broadened the category of issues that are mixed question of fact and law, but has struggled with setting a single standard of review.  Depending on the nature of the claim, the court will employ some formulation of both the deferential abuse of discretion standard and the de novo standard, thereby affording advocates an opening to set their own framework.

Prior to joining Kleinbard, Shohin served as a clerk for the Honorable Chief Justice Thomas G. Saylor of the Pennsylvania Supreme Court.  For questions or more information contact Shohin Vance at