Livinglies's Weblog

In this episode California Attorney Charles Marshall will discuss the pros and cons of filing an appeal.

Trial courts are not perfect institutions. They can and do make serious mistakes. And sometimes, trial courts are faced with unsettled areas of law, so that no matter what a judge decides, the losing side will have plausible grounds to appeal.

An appeal can be an opportunity to obtain justice when it was earlier denied. However, an appeal may not always make sense even if you believe that the trial court was in error. The first step in the appeals process is to decide what you hope to accomplish and whether the benefits justify possible drawbacks.

A successful appeal may not end your legal battle
Some successful appeals do provide the complete and final resolution of a dispute. However, this is by no means always true.

Many successful appeals result in the case being sent back for further proceedings in the trial court. This could result in a completely new trial. Although the Court of Appeal’s decision might result in that trial being conducted on ground rules more favorable than the first, there is no certainty that the bottom-line outcome will be any better. In fact, it could be even worse.

That said, a victory in the Court of Appeal could put you in a strong position to settle your case on favorable terms without having to go through a new trial. Often, the losing side in an appeal doesn’t have the stomach for a new trial and proves willing to compromise.

In fact, merely filing a notice of appeal can lead to a settlement that is better than the result obtained in the trial court. A significant number of civil cases settle during the course of an appeal — often, before the briefs are written. The other party may not want to go through the risk and expense of the appellate process and could be willing to give something up in order to achieve closure. If you hire an appellate specialist to handle an appeal, you send a strong signal that you are taking the process seriously — this increases the pressure on the other side.

The costs of continuing to litigate
Entering the appeals process means prolonging the emotional stress of litigation. The average civil appeal can last over a year. Federal appeals are especially slow — often taking about two years.

In addition, of course, there is the cost. Appeals can be one of the less expensive parts of the overall litigation process. Nonetheless, the appeal will add to your legal bills and, if the case then goes back to the trial court, the costs will increase further. This has to be weighed against what you stand to gain by appealing.

In addition, civil litigants will have to post a bond or other security if they want to stay the enforcement of many types of trial court judgment while an appeal is ongoing, including those involving money damages. And a defendant that loses an appeal will also have to pay interest on money that is at issue. The judicial interest rate is steep, 10 percent.

It may be beneficial to weigh the cost-benefit decision easier by having an attorney quote flat rates to handle appeals. While there is never any certainty about the outcome of an appeal, some certainty about the cost is helpful.

Evidence and appeals
Perhaps the most fundamental question to ask is how strong a chance you have of obtaining a reversal. As is shown elsewhere on this Web site, most appeals do not succeed.

One of the reasons is that the Court of Appeal does not reweigh the evidence heard by the trial court or — with very rare exceptions — consider new evidence. If the trial judge or jury believed evidence that “the light was red,” the Court of Appeal will not listen to an argument that “it was really green” — even if there was a lot more evidence pointing to that conclusion. Its job is solely to review whether the law was correctly applied to what the trier of fact in the trial court considered to be the facts and whether proper procedures were followed. An appeal is not a second trial.

That is not to say that an appeal does not provide any type of chance to challenge the evidence that was considered at trial. The Court of Appeal can decide whether certain evidence that was excluded should have been admitted, and whether evidence that was admitted should have been excluded.

In addition, the Court of Appeal can determine whether the evidence was sufficient to support a trial court outcome. But that can be a tall order on appeal — in general, an appeals court will uphold a decision based on facts if there is any evidence in the record that supports it.

The need to show “prejudice”
Even if you can point to legal error by the trial court, that does not of itself mean that you will succeed on appeal. The error must be “prejudicial.” The meaning of that term is itself a subject for argument, but one interpretation is that an error is prejudicial if there is a “real chance” that it made a difference to the outcome.

The need for prior objections
Another obstacle is that the Court of Appeal will not generally consider issues that were not initially raised in the trial court. If a trial lawyer did not object to a particular ruling or piece of evidence, for example, that issue most likely cannot be raised on appeal. It will generally have been waived. That said, an appellate lawyer may be able to introduce new arguments concerning an issue — although there can be gray areas between raising a “new issue” and merely improving upon the presentation of an issue already raised.

There are some ways around the waiver rule. For example, an often-overlooked exception is that a litigant may raise for the first time on appeal a pure question of law that that is presented by undisputed facts. In addition, litigants are not required to “preserve” an issue at trial if it would severely compromise their interests to do so — for example, a defendant at trial does not need to point out required evidence that the other side has omitted.

The risk of creating a bad precedent
Some litigants — particularly businesses — should consider whether or not they want to create a binding precedent in the disputed area of the law. Trial court decisions are not binding on other courts. Once a case goes to appeal, however, a legal precedent may be set that will be binding on trial courts faced with the same issue in the future. (Not all appeals do result in binding precedents — this depends on whether the Court of Appeal decides to “publish” its decision. A large majority are not “published.”)

In some situations, therefore, a party that loses at trial may be better off swallowing the result rather than risking an unsuccessful appeal that will have precedential effect. In other cases, however, a litigant may be eager to get the law settled once and for all.

The risk of cross-appeals
Keep in mind that if you appeal, the other side might “cross-appeal” — in other words, your opponent may try to reverse aspects of the trial court proceeding that were favorable to you. Therefore, even if you succeed in reversing one aspect of the trial court proceeding, the benefit could be offset by a less welcome reversal of another.

Conclusion
Winning on appeal is not easy. And a good appellate lawyer will always counsel a client about the pros and cons. But despite all the hurdles, many litigants do file appeals — and a significant number do go on to succeed. With civil appeals in the state courts, roughly one in five results in a complete reversal — and that doesn’t include appeals that result in some modification short of a reversal.

It is important that every potential litigant does consider the possible drawbacks of appealing. But if you have a good case, the battle can be well worth fighting — providing it is fought well.

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