No Fair Review - How Courts Increasingly Dodge the Issue with Waiver

A good appeal goes bad.

Fundamental Fairness requires that aggrieved parties be given a meaningful appeal from court actions. So does the doctrine of Due Process and a host of "cherished" legal doctrines. Nonetheless, such is not always the case.

Over the last few decades Courts have found that crowded appellate dockets can be cleared by invoking the doctrine of waiver, or otherwise disposing of cases without reaching the merits. While it is true that in many instances, that the parties are to blame, as they have failed to adequately brief an issue, or clearly preserve an issue on the record, it is also increasingly true that in many instances courts duck decisions with mechanical interpretations of waiver, and by setting up legal speed bumps to appeals.

By way of example, in Pennsylvania, in order to appeal a civil jury verdict, a party needs to file, and will be strictly limited by the content of; a post trial motion raising all the issues; a 1925(b) statement, sometimes including a brief; and finally the appellate brief itself. Failure to raise an issue in the first instance, or to serially re-raise an issue at each step, will be found as waiver and abandonment, and appellate review will be denied.

This movement is not without hisorical parallel. Old English Courts once had a strong fascination with the strict adherence to procedural form over fairness and fair recourse, with the resulting injustices leading to the creation chancellors in equity. We should learn from them.

We realize the Courts do more than eat Lotus, and that vague or imperfect appeals can clog the system. Yet, Appellate courts must try to reach the merits of each case whenever possible, even while requiring the parties to adhere to the rules of procedure. The litigant's fortunes should not rise or fall on the vagaries of the system, the torpescence of their lawyers, nor the courts desire to trim the docket.