October 14, 2026

By: Robert D. Weinberg

When a trial court loss occurs, lawyers must quickly assess whether to appeal by identifying specific errors, filing required documents within deadlines, and strategically presenting arguments. The appellate brief should be clear, focused on two to three key issues, and written to make the appellate court’s job easy by distilling complex matters into simple, well-supported points.

A trial court order for a case you tried lands on your desk and it’s bad. You lost. You start to sweat, then panic. What did you get wrong? What will the client say? Will you get fired?

First: breathe. Every lawyer experiences this moment of loss and the sheer terror that goes with it. But you are a lawyer, and it is your responsibility to think about how to manage the situation on behalf of the client.

There is a level of wisdom implicit in deciding whether to appeal. Are there viable arguments? Is it worth it? Are there other avenues to pursue? These decisions need to be made quickly, within the deadline for filing an appeal. The goal of this article is to provide guidance (mostly learned through trial and error) through the appeal process.

The first question is whether you should file for reconsideration first. Or instead. It is axiomatic that judges don’t like second guessing themselves. However, there may be fixes a judge would consider that might avoid an expensive appeal.

It is crucial to understand that, in Pennsylvania, simply filing a motion for reconsideration does not extend the 30-day appeal deadline unless reconsideration is granted within the period. Preferably, the grant of reconsideration should vacate the appeal at issue, and your proposed order should say so. Absent such an order, your appeal time continues to run.

Either way, make sure to file your notice of appeal on time. Then, read the Rules of Appellate Procedure. I do this every time, and I always find something I didn’t notice before.

As you are reading the rules, start preparing two documents.

One is your concise statement of matters complained of on appeal; the trial court will likely direct you to file such a document after receiving the notice of appeal. The “concise statement” outlines which trial court determinations are challenged, so that the trial court can address them in a written (Rule 1925(b)) opinion. The outline needs to preserve the claims you wish to raise in the appellate court; thus, it needs to be broad enough to provide umbrella coverage to your arguments but narrow enough to explain the reasons for the appeal.

After all, the Superior Court is an error correcting court; if you cannot identify specific mistakes that the trial court made, then you should probably not appeal in the first place.

The second document is called a docketing statement. The Superior Court issues a blank docketing statement to you after it receives the notice of appeal. The docketing statement requires a basis for why the order is appealable (appealability could be the topic of an entire article); it also requires a brief description of the appeal. You will need to identify there why the order in question is appealable in the first place.

The concise statement and docketing statement should harmonize. You should start homing in on the core issues that you want the Superior Court to address. But, you are not quite there.

That is because the trial court will issue a written 1925(b) opinion. This document will almost certainly provide the foundation for your brief.

Because the Superior Court is an error correcting court, it is critical to scrutinize the 1925(b) opinion and dissect it, break it down into its component parts, reverse engineer its logic, and analyze its fealty to the record and the law. This process illuminates where the trial court erred; it helps prioritize the issues to address in the brief.

After outlining the Rule 1925(b), do two things. First, re-write the description of the appeal to create what will become the summary of argument section in the actual brief. If this can’t be done in a page or less, you are probably going to lose (OK, maybe two pages).

Second, draft the questions presented. Pick two. Maybe three questions. A prolixity of issues suggests sloppiness and that you have insufficient faith in your strongest arguments.

And continue revising that summary and statement of issues. They should develop, sharpen, but also stay true to the thesis of your appeal.

Next, as appellant, you will need to advise your opponent of what you intend to include in the “reproduced record,” the subset of documents from the actual record that you feel is sufficiently important to reproduce for the appellate court. Simultaneously create the reproduced record and add page numbers to it. Doing this early will save a lot of time.

This is because the next step is to write the statement of the case, which includes a procedural history, a summary of the proceedings, and often a description of the order or opinion under review. The judge’s law clerks are the audience; be empathetic. Make it easy to find citations to the reproduced record—by specifically referencing the pages numbers from your reproduced record. Where appropriate, use block quotes to make retrieval easy.

In essence, write the opinion for the appellate court.

Writing the argument section at this point should be effortless. I like to write out my argument section without getting stuck on factual or legal weeds. These thorns will have to be smoothed out, but let the thesis of the argument be the guide as opposed to getting bogged down in details. This will help distill the most important points for the appellate court; if you cannot explain these points simply and clearly, you may wish to reconsider the appeal.

There are other basic pointers (use verdana 14; check word count; attach the operative order and trial court opinion; triple check cites; be wary of AI; use plain language).

These basic concepts have helped me understand my case, prioritize issues, and to elevate my thinking out of the morass so that, when it comes time to argue, I (at least hopefully) am able to rise above the fray and explain to the panel why they should agree with me without needing to provide a lot of background or context as to why. The brief has already done the job.

Reprinted with permission from the October 13, 2026 edition of the Legal Intelligencer© 2026 ALM Media Properties, LLC. All rights reserved.