Loquaciousness is Not Effectiveness; Failure to Comply with Appellate Rules

By: Dennis Whitaker

Superior Court recently decided In Re: Estate of Stephens, No. 2939 EDA 2016, filed October 30, 2017, and had occasion to remind us that raising a large number of issues on appeal triggers the presumption that there is no merit to any of them. That decision, and a second issued that day, Dutton v. McCrea, No. 555 EDA 2016, filed October 30, 2017, also serve to remind pro se appellants that their status does not absolve them of compliance with the appellate rules.

Stephens, authored by Judge Platt on a panel with Judge Bowes and Judge Lazarus, involved an appeal from a Delaware County Orphans’ Court order denying an appeal from the register of wills which sought to invalidate the last will and testament of appellant’s father. After reciting the facts and procedural history taken from the trial court’s opinion, the court noted that appellant raised nineteen questions for review, which led to the following admonishment:

We express our disapproval that Appellant raised nineteen issues in his statement of the questions involved. While this Court understands that Appellant believes that the trial court made numerous errors,

. . . we note that it has been held that when an appellant raises an extraordinary number of issues on appeal, as in this case, a presumption arises that there is no merit to them. In United States v. Hart, 693 F.2d 286, 287 n.1 (3rd Cir. 1982), the court had an opportunity to address this situation:

Because of the inordinate number of meritless objections pressed on appeal, spotting the one bona fide issue was like finding a needle in a haystack. One of our colleagues has recently cautioned on the danger of “loquaciousness:”

With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in open court that when I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that this is an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.

Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility—A View From the Jaundiced Eye of One Appellate Judge, 11 Cap.U.L.Rev. 445, 458 (1982).

Slip op. at 3-4, n. 1, citing Estate of Lakatosh, 656 A.2d 1378, 1380 n.1 (Pa. Super. 1995).

Following that admonition, the court turned to appellant’s “utter failure to abide by the Pennsylvania Rules of Appellate Procedure.” Citing the failure to comply with Pa. R.A.P. Nos. 2101 (briefs and reproduced records generally), 2111 (requirements for the brief of appellant), and 2119 (argument, citation to authorities, references to the record, synopsis of evidence and statement of place of raising or preservation of issues), the court repeated its previous warning that:

“[w]hen issues are not properly raised and developed in briefs, and when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof.” Commonwealth v. Sanford, 445 A.2d 149, 150 (Pa. Super. 1982) (citations omitted). Further, the fact that Appellant is proceeding pro se does not absolve him of compliance with the Rules of Appellate Procedure.

Although this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant. To the contrary, any person choosing to represent himself in a legal proceeding, must, to a reasonable extent, assume that his lack of expertise and legal training will be his undoing.

Slip op. at 11, citing Wilkins v. Marsico, 903 A.2d 1281, 1284-85 (Pa. Super. 2006), appeal denied, 918 A.2d 747 (Pa. 2007) (citations omitted).

With that, the court concluded that the defects in the appellant’s brief “are significant and substantially encumber our appellate review.” Because the brief was “defective to the point that it constitutes a violation of Pa. R.A.P. 2101” the court dismissed the appeal and affirmed the Orphans’ Court decision.

Another panel reached the same result on the same day. In Dutton, President Judge Gantman, writing for a panel including Judges Panella and Dubow, dismissed a pro se appeal from the Philadelphia Court of Common Pleas dismissing a medical malpractice action. After a brief recitation of the procedural history, the court continued:

Preliminarily, appellate briefs must conform in all material respects to the briefing requirements in the Pennsylvania Rules of Appellate Procedure. Pa. R.A.P. 2101. Where an appellant fails to raise or develop her issues on appeal properly, or where her brief is wholly inadequate to present specific issues for review, this Court will not consider the merits of the claims raised.

Slip op. at 2-3. The court then repeated the same warning to pro se litigants contained in Stephens, and disposed of Dutton’s appeal in a cursory paragraph:

Instantly, Appellant’s appellate brief contains only a three-sentence argument section with no citation whatsoever to supporting legal authority. See Pa. R.A.P. 2119(a) (stating argument section shall be divided into as many sections as there are questions presented, followed by discussion and citations to pertinent legal authorities). Appellant’s failure to develop her issue on appeal in a meaningful way compels waiver . . . Accordingly, we affirm.

Slip op. at 3-4 (footnote and citation omitted.)

We can shake our heads at pro se litigants’ appellate misadventures, but they provide useful reminders for even the most seasoned appellate lawyer. First, as Judge Aldisert’s quote illustrates, more than two or three issues may often be seen as “too many.” Raising obviously meritless issues simply because they were preserved below distracts the court from any meritorious issue presented and reduces your credibility with the tribunal. Second, courts expect compliance with the appellate rules. We all hope to avoid filing briefs as deficient as those in Stephens and in Dutton, but the incidence of noncomplying briefs is high, and the courts are not shy about pointing out lapses, even if the result is not dismissal.  Even where the court may choose to overlook noncompliance, the simple failure to conform to the rules is again a distraction from your client’s issues and impairs your credibility.

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About the Author:

Dennis A. Whitaker, partner at Hawke, McKeon & Sniscak, LLP, is an experienced litigator with over 25 years of Commonwealth service.  Focusing on government appellate and original jurisdiction practice in state and federal courts, Dennis offers sound advice, creative solutions, and effective strategies to clients navigating the appeals process.