Pennsylvania Superior Court Judge Deborah Kunselman. Courtesy photo When and Why Appellate Courts Find Waiver: One Judge's Perspective
When writing an appellate brief, lawyers should carefully choose the issues to appeal. After the brief is written, they should review their argument for each issue to verify that it is fully developed using IRAC or a similar formula.
October 20, 2022 at 01:04 PM
11 minute read
Recently, Pennsylvania Law Weekly published a commentary by attorney James Beck, "Waiver in the 21st Century—Insufficiency of Argument." In it, Beck reviewed cases where Pennsylvania appellate courts found waiver due to undeveloped arguments. I would like to clarify when and why appellate courts find waiver to help lawyers avoid this pitfall.
Generally, there are three types of waiver. The first occurs when the lawyer fails to object in the trial court. Lawyers usually object to testimony, exhibits, and closing arguments, but they should also remember to object to any issues that arise during voir dire, jury instructions, verdict-slip creation, and at verdict when the verdict is inconsistent. Attorneys must state the basis for the objection, and when appropriate, move for a mistrial or curative instruction. Timely objections at the trial court are necessary to give trial judges the opportunity to correct errors in real time.
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