Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, February 6, 2014

Is It Apropos To Respectfully Request?

I have heard plenty of dialogue about whether or not attorneys should "respectfully request" that the court rule in a specific fashion.  Likewise, I have also heard plenty of debate about whether or not attorneys should "respectfully disagree" with the judges during oral argument.  It seems that adding the word "respectfully" is an unnecessary guise for professionalism and politeness, and merely eliminating that words does not diminish the respect the advocate has for the court.  

Regardless of what we think about attorney usage of the "respectful request", have you ever heard a court "respectfully request that an appeal be denied"?  Over at Volokh Conspiracy, he discusses how this is a growing trend in Pennsylvania.  Apparently, in situations where the losing party is likely to appeal the trial court's decision, the court includes a statement at the end of its opinion asking the appellate court to either affirm the order of the trial court or deny the appeal.  

Interesting concept.  I wonder whether it actually impacts the decision of the appellate court or if it is viewed as a formulaic statement that is ultimately ignored.  I'd love to hear from a PA attorney or judge familiar with this practice.  I encourage you to check out the post over at Volokh.

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As an appellate lawyer in Pennsylvania, I can say that Pennsylvania trial-court judges are not strictly required to write opinions in support of their orders—even dispositive ones like orders granting summary-judgment motions. Some do, but many do not. You typically do not get an in-depth opinion until after the losing party appeals. Those opinions are also more targeted than in other states. Under Rule 1925 of our rules of appellate procedure, a judge must only file “at least a brief opinion of the reasons for the order” once he or she receives the notice of appeal. Even then, under Rule 1925(b), before writing the opinion the judge may enter an order (and almost all do) requiring the appellant to first file “a concise statement of the errors complained of on appeal.” Any errors that are not listed by the appellant in the 1925(b) statement are waived for appeal. The judge then writes his or her opinion to respond point-by-point to the appellant’s alleged errors. It’s not uncommon for the resulting opinion to read almost exactly like the argument section of the appellee’s brief. Because the opinion is responding directly to the alleged errors, I imagine that’s why the judges explicitly ask to be affirmed.

Posted by: Robert Ralston | Feb 6, 2014 12:12:24 PM

Thanks for the very interesting and detailed response. This is very different than I experienced in Ohio. Trial judges almost always provided a reasoned opinion in the 1st instance, because those that did not usually ended up having the case reversed and remanded. I wonder if other states follow the PA model...

Posted by: Kendall D. Isaac | Feb 6, 2014 1:39:37 PM

In Mississippi the words "Respectfully Request" had better be included in the brief.

Posted by: Lee Turner | Feb 14, 2014 12:25:34 PM

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