What to Think About on Appeal From an Unfavorable Trial Court Decision

In response to the rising number of requests for us to write briefs or narrations for briefs I submit this article which is my recent response to such a request. Here is an uncomfortable fact: most appeals arise because of mistakes made by the litigant in trial court, not the judge. All appeals MUST be based upon what did happen in the trial court not what should have happened. 

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Yes we write briefs or narration for briefs all the time. Costs run from a low of $6500 to a high (so far) of $15,000. It depends upon how much we need to do. Legal research alone is usually around $1500-$2500. You should have local counsel or appellate counsel to advise you on appellate procedure. There are time limits on everything including filing the notice of appeal which must state specifically what order is being appealed and that it is a final order. Sometimes people get kicked out of appellate process because their notice of appeal cited the wrong order and then the time limit for filing the correct notice has expired. It is very technical.

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FACTOID: There are statistics on appeals. Generally only one in 6 appeals are successful by any measure and of those many of them are only partially successful requiring additional proceedings in the trial court. The higher you go in the hierarchy of appellate courts the less your chances your case will even be heard, much less decided in your favor. Neither the State nor the U.S, Supreme Court is under any obligation to hear your case. Of the 15% +/- that are “successful” at least half are criminal cases. That means cases involving a civil matter like foreclosure have about a 1 in 12 chance of being “successful” on appeal.
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EXCEPTION TO THAT GENERAL RULE: It was pointed out to lawyers at a seminar at which bankruptcy judges were presenters, that the typical appeal from the decision of a bankruptcy judge is more susceptible to appeal than the ordinary decisions of courts of general jurisdiction. That is partly because bankruptcy judges) formerly called “magistrates” have limited jurisdiction and they frequently overstep their authority  to make any decision.
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There are three separate and optional avenues for appeal. Most appeals from Bankruptcy court go to  a Bankruptcy Appellate Panel which is the least likely place to get a reversal. Second, many appeals are made direct to the Circuit Court of Appeals in which appellants typically don’t fare any better than the BAP. And lastly the one least used is an appeal to the Federal District Judge of general jurisdiction where the odds of success rise to 50%. The judges who pointed this out were perplexed why more people didn’t take that route.
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When writing a brief, your audience is a clerk for the appellate judges. That is a young lawyer, so assume nothing. If you don’t grab the attention of the reader (clerk) immediately your appeal will be thrown onto the pile of cases that will be affirmed.
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Appellate courts do not try cases — a fundamental fact that is often forgotten by lawyers and unknown to pro se litigants. Even if every judge on the panel thinks they would have decided the case differently they will probably affirm the trial judge’s decision. The principle working here is finality. The courts exist to create finality to disputes, for better or for worse. All decisions are viewed and reviewed in the context of preserving finality. The appellate court will only reverse a decision that is fundamentally wrong on the law. It will almost never reverse a decision that was wrong on the facts.
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Most cases in which an appellate decision results in reversal are set up at trial. That means careful trial preparation such that a resistant judge is boxed into a corner and the issues for appeal are plain and simple. If your contested issue involves the judge’s discretion the trial court decision will be affirmed practically every time.
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That said well crafted appeals that are presented with credibility and persuasion can still be filed with at least some prospect for success. Sloppy work will tank even the best case on appeal. Citations to the actual record on appeal are required — not arguing evidence that did not get into the court record (unless exclusion of evidence is the basis of the appeal). In foreclosure cases this is rare because the borrower lacks the evidence to “prove” a case.
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The foreclosure case is about whether the party seeking the remedy of foreclosure was entitled to do so. Hence the issue in foreclosure cases is more often about the admission of evidence than the exclusion of evidence. Anyone can dash off a brief and “justify” a fee. Only lawyers well versed in the subject and the law surrounding the subject have any chance of producing an effective brief. The brief must be well-written with proper language, punctuation, grammar and context. It must be logical and persuasive. 

5 Responses

  1. It is simple enough to show the lenders are committing fraud. Seize the purported promissory note for all of the mortgage loans that did not go into default at any time. I can assure you in advance that the notes will not contain the plethora of endorsements that were fabricated on to the notes that were in default. Nobody ever expected the MERS decision. That shitted things up for the lenders/master servicer, and that is when the folks at the FDIC let everyone know that the CREDIT MUST STAY IN THE SYSTEM AT ALL COSTS!. That is the only reason they exist… as a puppet to prevent the dissolution of assets that would benefit the homeowner.

    Unfortunately, the FED conspired with their member banks to take the 30 year fixed down to 2.875% today. Any of those legacy securitizations have or will shortly be going through a clean up call as interest rates stay below 3%, and Fannie and Freddie Trusts continue to buy as the lender of last resort.

    TSMIMITW

  2. […] Source: What to Think About on Appeal From an Unfavorable Trial Court Decision […]

  3. Your Appellate Judges are no less corrupted than your county courts. Here in Wisconsin, the Supreme Court threw the real property statutes in the wastebasket to accommodate the banks.
    Glad I’m done with all this crap. Life is good again.

  4. More than that Corruptionpedia2 – This is being blocked at high levels. with distinct directions to the Courts.

    WHY? Again, I will say, if there are no “scapegoats” and the government did not intervene as it did, there would have been total financial collapse. These officials sleep at night because they think they solved a bigger crisis.

    Yet, we as victims remain. We remain the scapegoats. We remain victims of lies. Always liked Neil’s name for this blog – “Livinglies.” Perfect.

    We all don’t want the financial system to collapse. But, we do not want to take the fall to save the system. We do not want to remain victims.

    Costs are steep Neil. I have been devastated fighting a system for a very long time — and never in default (never filed for bankruptcy either). Never missed one darn payment. That did not matter –past refinance payoffs and payments vanished into thin air. NO record. But, I HAVE the records. Does it matter? Nope.

    So – Neil, you need good case law. Concealed settlements,most minor, do not help the people. We need at least one good case to turn the tide in courts.

    I can’t get there — been sitting for well over a decade. No discovery. Nothing. And proof beyond question. Attorneys? I have multiple.
    Does it matter? Again – NO..

    This is system rigged against the “little” guy. No matter what. The Courts? On instruction. Our government cannot and will not fix the fraud. They will let the victims fall because the consequence of truth would be devastating to the entire financial system.

    Go for it – best you can. I am confident we will eventually get the truth told. But not without complete joining of forces.

    Anyone willing to take this on — joining of forces – let me know. I will be the poster child. And, poster child – I can easily be. My own “discovery,” outside of court, is beyond question.

  5. The only thing that matters in Appeal – how much donations received an Appeal Court Justice from banks’ lawyer for election ; and where this Justice invest his money. This is the ONLY thing what matters in Appeal.

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