On Appeal, Waiting for the Trial Judge’s Opinion Can Be the Hardest Part

Howard Bashman.

Unless one serves on the U.S. Supreme Court, being a judge involves the possibility that your rulings will be reviewed by a higher court. And for trial judges, that possibility is all but a certainty, given the appeal as of right that exists at the final judgment stage in nearly all cases decided by state and federal trial court judges.

Although important differences in procedure exist in the appellate process between Pennsylvania state and federal courts, one thing both judicial systems share in common is that appellate review in either forum ordinarily occurs after the trial judge has not only issued an appealable decision but also provided some explanation of the reasons for his or her ruling that will be challenged on appeal. And in both judicial systems, the trial judge’s explanation for the ruling usually takes the form of a written opinion.

Being a trial judge is not an easy job. It takes a great deal of work. And having one’s rulings appealed to a higher court, while certainly a routine part of the job, adds to a trial judge’s workload by necessitating the drafting and filing of a written opinion explaining the reasons for the ruling(s) to be challenged on appeal.

No doubt the overwhelming majority of state and federal trial judges are extraordinarily conscientious. And, to be sure, there are times when writing an opinion in support of decisions that have been or will be appealed can be very time-consuming, especially where the appeal follows a lengthy trial, the case is very factually or legally complex, or numerous rulings are being appealed, necessitating a longer opinion than a single-issue case might require.

That being said, the focus of this month’s column is on one of my least favorite aspects of appellate practice: having to wait what feels like an endlessly long time for a trial judge’s ruling in support of a decision that already has been or will be appealed just as soon as the trial court’s opinion has issued. How long is too long for a trial court’s opinion to take depends, as I have already noted, on the complexity of the case, how many issues are being appealed, and the trial judge’s additional, time-sensitive obligations in other cases.

In the Pennsylvania Superior Court, the default rule is that the appellate court wishes to receive the trial court’s record, including the trial judge’s opinion in support of the order(s) appealed from, approximately 60 days after the appeal has been filed. In many cases, that deadline is only honored in the breach. Eventually if no opinion is forthcoming from the trial judge, the Superior Court will docket a “delinquent record notice,” intended to remind the trial judge of the need to submit the now-overdue opinion sooner rather than later. Supposedly at some later date, either the Superior Court’s staff or a judge on that court tasked with this duty will begin to follow up directly with trial judges whose opinions are long overdue.

In the Pennsylvania state court system, the trial judge ordinarily is not even expected to issue an opinion in support of an order or judgment on appeal until after the appeal has been filed. This explains why the appellate court eventually becomes involved in trying to encourage the trial judge to complete his or her opinion so that the appellate process can proceed forward to the briefing stage.

In federal court, by contrast, federal district judges (or, in certain cases, federal magistrate judges) are expected to issue an opinion at the same time that they issue their ruling in a matter that is immediately appealable. I vividly recall at least one especially complex and high-value case during my career in which the district judge took over a year to decide and issue an opinion rejecting the defendant’s post-judgment motions. Neither party appreciated having to endure that delay, and the appellate process could not even begin until the federal district court’s decision issued.

My experience in Pennsylvania state court appeals has been similar. Although it is rare for a state trial judge’s opinion to take more than four to six months to issue even in a relatively complex case, I have worked on several appeals in which the trial court’s ruling has taken nine months to a year to issue from the time the case was originally appealed to a higher court. And during that time, the appeal cannot proceed forward, because the appellate court in fairness cannot issue a briefing schedule until the reasons for the trial judge’s rulings being challenged on appeal are known.

Lest anyone think that this is only a problem at the trial court level, I would be remiss in failing to note that on occasion decisions from the U.S. Court of Appeals for the Third Circuit and the state Superior Court can take around a year from oral argument to issue in particularly complex cases. And on Sept. 13, 2011, I argued a civil appeal in the Supreme Court of Pennsylvania. The Supreme Court finally issued its ruling in that case on Jan. 21, 2014, what I hope everyone would agree is an absurdly long time thereafter (more than two years and four months after oral argument). My memories of that interminable delay are somewhat ameliorated by the fact that my client largely prevailed in that appeal.

Some states have adopted laws under which judges are financially penalized if they take too long to issue rulings or opinions on pending cases. In those states, judges have adopted strategies designed to ensure that their salaries will not be decreased because their rulings are untimely. At the federal level, the U.S. Constitution would prohibit such penalties, and surely Pennsylvania state lawmakers have other things to worry about than penalizing judges who take too long to rule (although it may be a more palatable way to penalize the judiciary than impeachment proceedings).

The federal judiciary maintains, and at least once a year makes public, lists of judges who are taking especially long to decide matters that are ripe for decision. Of course, given the existence of life tenure, some judges care more than others about trying to avoid appearing on those lists.

Thus, both the federal courts and the state courts of Pennsylvania have in common that they employ, for lack of a better term, a process of shaming judges who are delaying the appellate process by taking an inordinately long time to issue rulings and opinions that are necessary for an appeal to proceed to adjudication. This is not a topic that’s frequently discussed, but I hope by giving it just a little more attention, perhaps trial judges will become even more motivated to complete their opinions as promptly as possible to enable the appellate process to commence without undue delay.

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 hjb@hjbashman.com. You can follow him on Twitter @howappealing.