Upon Further Review

Howard Bashman.

I hope that you and yours are staying safe and sane during this very difficult time. The coronavirus is both insidious and deadly, and I applaud health care workers—including my brother-in-law, who is a local emergency room doctor; restaurant and food delivery workers; and supermarket employees for all that they are doing to ensure our collective survival.

Although it now seems like eons ago, on March 3, I delivered what has likely turned out to be my last in-person appellate oral argument for quite some time to a three-judge panel of the Pennsylvania Superior Court sitting in Philadelphia. I had two other oral arguments scheduled for later last month—one before a nine-judge en banc Superior Court panel March 18 and the other before a three-judge Superior Court panel on the road in Doylestown March 24—but both of those were understandably postponed.

To be sure, I am far from an expert on working from home, as I have an actual office located approximately five minutes from home that I would ordinarily commute to and work from each business day. But I have been working from home now for a little more than three weeks, in isolation with my family, and it sounds like everyone can look forward to continuing to do this for a considerable time into the future.

The coronavirus affects different aspects of the practice of law differently. Although perhaps I will be proved wrong, but I cannot imagine trial courts using videoconferencing technology to conduct jury trials with the judge, the lawyers, the witnesses and each of the jurors sequestered separately where they reside. Yet there is no reason why conferences and hearings before a trial judge cannot occur remotely. And surely the coronavirus has made and will continue to make certain law practices more essential and busier than ever.

At the appellate level, courts have continued to decide pending cases. The U.S. Supreme Court is continuing to decide cases previously argued. On March 26, the Pennsylvania Supreme Court issued opinions in five pending cases. The U.S. Court of Appeals for the Third Circuit continues to decide pending appeals, and the Pennsylvania Superior Court has continued to issue published and unpublished opinions in numerous appeals each day.

Because the pandemic has closed appellate courtrooms, recently three federal appellate courts have begun broadcasting their remotely conducted oral arguments live online, bringing the total of federal appellate courts that now do so to five. The Third Circuit is now conducting oral arguments by phone. Although arguing an appeal by phone is not ideal, given the absence of any visual communication cues, it is certainly better than nothing. And the Third Circuit has not implemented any sweeping, across-the-board extensions of due dates in pending cases.

In Pennsylvania's state appellate courts, by contrast, aside from deciding cases that are ready for decision, proceedings in nearly all appeals have essentially grounded to a halt, for two reasons. First, the appellate courts have issued orders extending briefing deadlines to at least May 1, and in some instances until May 17. And second, to my knowledge, the state appellate courts of Pennsylvania have not yet begun to conduct appellate oral argument remotely, either by phone or videoconferencing.

Pennsylvania appellate courts have always been tremendously liberal in granting an initial 30-day extension of the deadline for a party's principal brief on request, so long as the party requesting that extension can offer some plausible reason for needing the extra time. In these uncertain times (to borrow the words of seemingly every current television commercial), such a liberal policy for extending briefing deadlines should continue unchanged.

I believe that the Third Circuit acted appropriately in keeping deadlines in pending cases in place subject to extension on request, and the Pennsylvania state appellate courts overreacted in granting a blanket, across-the-board extension of all briefing deadlines in all appeals through May 1 and in some instances through May 17. Regardless of the circumstances, attorneys have an ethical obligation to be diligent, and courts have the obligation not to delay the availability of justice unnecessarily.

As someone who has worked as a solo appellate practitioner for the past 16-plus years, I know first-hand that appellate litigation is not, and does not have to be, a group exercise. During that time, I have worked for large and small clients and as co-counsel with lawyers at law firms of all sizes. Thanks to the telephone and email, briefs can be written, discussed, edited, and finalized even if everyone working on the project is not in the same physical location. From big law firms with offices in numerous, far-flung geographical locations to the solo practitioner, we all know this to be true.

Moreover, as attorneys we owe it to our clients, the appellate courts and their judges, and opposing counsel to keep matters moving forward to resolution whenever possible. A two-month backlog in cases pending for decision in Pennsylvania state appellate courts may not sound like much, but then recall all the hard work it took for the Superior Court—one of the nation's busiest intermediate appellate courts—to become so efficient that in recent times oral argument would often occur only a few months after an appeal had been fully briefed.

Another, more insidious, aspect of unnecessarily delaying the resolution of appeals also deserves mention. In many appeals, one side or the other benefits greatly simply as the result of delay. Consider a recently convicted criminal defendant who is seeking to overturn his conviction on direct appeal. The prosecution, by contrast, is seeking to have the conviction affirmed. If the criminal defendant has a winning case, he or she does not deserve to remain behind bars for many additional months simply because an appellate court decided it would be easier to implement an across-the-board blanket extension of briefing deadlines instead of continuing with its ordinary case-by-case consideration of such requests.

Similar issues can also arise in civil appeals, where one side may desperately desire the speediest possible resolution while the other side benefits from having the status quo continue indefinitely. In ordinary times, the appellate courts work to ensure that one party cannot inflict the costs of unnecessary delay on the opposing party. But now, when the delay is awarded automatically, this sort of unfairness unfortunately will arise even though the extensions have been implemented with the most noble of intentions.

Automatic extension or not, I am working to keep my cases on their original schedules as much as possible. For example, in a civil appeal in which I represent a plaintiff, I had a reply brief due in the Superior Court March 27. Opposing counsel had filed their brief for appellee on March 10. Although it wasn't easy, working from home I was able to draft the reply brief, obtain my co-counsel's prompt approval of the draft, and then get the reply brief electronically on file with the Superior Court on its original due date, without any need to take advantage of the available 30-day blanket extension that had been provided.

Please stay safe and healthy in the difficult days ahead. And if you are fortunate to remain safe and healthy, I hope you will join with me in agreeing that the coronavirus need not grind all appellate proceedings to a halt. Here's hoping that Pennsylvania state appellate courts will stop issuing blanket, across-the-board extensions applicable to nearly all appeals so that appeals can again proceed to resolution on a timely basis, taking into consideration any unique circumstances that individual cases may present.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached by telephone at 215-830-1458 and via email at [email protected]. You can access his appellate Web log at http://howappealing.law.com/ and via Twitter @howappealing.