Howard Bashman.

Upon Further Review

Let's talk anniversaries. In six months from now, in December 2020, this column will celebrate 20 years of existence. Back then, when the editors of The Legal Intelligencer considered allowing me to write a monthly column about appellate litigation, they were concerned about whether this subject matter could generate enough different things to discuss on an ongoing basis. Although I didn't admit it then, I too shared that concern. But, as we approach this column's 20th anniversary, I'm beginning to become a bit more confident that the answer to that question may turn out to be "yes."

This week will also mark three months of working from home for many of us. It was humbling to learn that lawyering for the most part did not satisfy the definition of being an "essential service" here in Pennsylvania, except for when it did. In any event, recently all of Pennsylvania moved into the so-called "Yellow Phase," which allows people to return to the office to work if they really need to. Fortunately, for the most part appellate litigation can be performed anywhere one has access to a laptop computer and a reliable internet connection. Electricity helps too!

Speaking of electricity, on Wednesday, June 3, I had the pleasure of being the first advocate to argue remotely by video to a nine-judge en banc panel of the Pennsylvania Superior Court. Even before that date, the Pennsylvania Supreme Court, the Commonwealth Court and at least one three-judge Superior Court panel had already conducted oral arguments by video conference. My video "first" was thus something of a "fourth" in that regard.

June 3 was also the day when, shortly after noon, brutal thunderstorms featuring unusually high winds and heavy rains crossed the western and northern suburbs of Philadelphia with unusually violent results, knocking out power to hundreds of thousands of homes and businesses. This so-called derecho event caused my neighborhood to lose power at 12:25 p.m., approximately an hour and 15 minutes after my Superior Court en banc oral argument had concluded. Power to my neighborhood was not restored until some 32 hours later, which nevertheless still put us ahead of many other affected portions of the region.

Sometimes a little luck can go a long way, as it did that Wednesday when my video oral argument ended up being first on the list of cases to be argued. Had it been later on the list, the power outage that my area suffered as a result of those storms would have made it far more difficult for me to have participated. Even if we had a backup generator, which every power outage brings me this much closer to finally acquiring, the storms also knocked out our neighborhood's internet service, which remains the other essential ingredient for participating in a video oral argument.

So this is the new normal, which we get to experience until someday perhaps we are fortunate enough to return to the old normal to one degree or another. Thus far this month, I have argued two appeals remotely, one by video (as already noted) and a second by audio—which also involves participating online over the computer. Later this month, I have a third oral argument, again by video. Three appellate oral arguments in a month was a large number even before the pandemic, so perhaps the new normal in time will not seem that much different from the old normal.

Thanks to my involvement in appellate-related activities near and far, over the past several years I have served as a member of the education committee of the Appellate Judges Education Institute. In that capacity, I have had the pleasure of getting to know various federal and state appellate judges from across the nation who also are a part of that committee. In particular, it has been a pleasure to get to know U.S. Court of Appeals for the Ninth Circuit Senior Judge N. Randy Smith of Idaho, who is quite the wonderful storyteller.

Smith says that it was his father who told him not to speak ill of another person until you have walked a mile in the other person's shoes, because then you will be a mile away and have the person's shoes. Now that things are beginning to move back to normal to at least some degree in the practice of law, there's one final area deserving of attention for now in Pennsylvania appellate practice.

Unlike in federal court, where district judges tend to issue opinions when they decide dispositive matters, in state courts many trial judges will not issue an opinion until after a case has been appealed. In such cases, the state appellate court will refrain from setting a briefing schedule until the trial judge's opinion in support of the decision being challenged on appeal has issued. I had hoped that the "stay-at-home" period might have provided the perfect opportunity for trial judges to work on and complete opinions in cases that had been appealed. Unfortunately, that has not yet proved true in the several appeals I have in that very procedural posture.

In the words of Smith, perhaps I cannot appreciate how much other work Pennsylvania state court trial judges assigned to civil cases were forced to grapple with during the "stay-at-home" period. But I continue to hope, as things slowly return to the new normal, that Pennsylvania state trial court judges will begin to focus more attention on completing opinions in cases that have been appealed, and that appellate courts will begin to send appropriate reminders to trial judges in cases where opinions are now long overdue to complete and file those opinions so that appellate briefing can begin.

As always, thanks for reading and please stay tuned. Next month's installment of this column will consist of my annual review of how the U.S. Court of Appeals for the Third Circuit fared in the soon-to-be completed U.S. Supreme Court term.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa. 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.