What should I do before deciding to appeal or not?
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UPDATED: Oct 4, 2011
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The first thought after hearing the final judgment in any trial is to expect the “winning” side to be celebrating and the “losing” side to appeal the decision. But the calculus involved in the decision to appeal can often be more complex than this. For many parties, not every loss is worth appealing, and sometimes a “winner” may feel they should have been awarded more. To add to the considerations, appeals are often not simple or free, and hiring an experienced appeals lawyer – which is your best chance of winning on appeal – may end up costing even more than the original trial.
As a result, in most cases, thinking about an appeal means performing a thorough and objective cost-benefit analysis. Doing so may not be easy, since assessing your own case automatically puts you in a position of partiality. Even your lawyer may not be impartial about the subject of an appeal, whether it’s because they feel they could do better given a second chance or because they’re convinced that the district court got it wrong. The best thing to do, then, is to get the advice of a truly impartial attorney – preferably one with experience at the appeals court level and who was not involved with your case at the trial level. An appeals attorney will review the case,look at the examples from your trial attorney and dispassionately evaluate the relevant factors such as cost, time involved, and the likely result of an appeal, offering an expert’s take on whether the trial court decision should realistically be appealed. On average, a good appellate attorney will charge between $300 and $500 for a consultation. The time will be unlimited and the advice will be impartial. If the appellate attorney encourages you to appeal, ask him for specific reasons why. You can also request a fee table at this meeting, including the amount of local filing fees.
The Benefits, Costs, and Potential Surprises of an Appeal
For a party that has lost a case outright at the trial level, the benefits of an appeal are obvious: the appeals court has the authority to overturn the verdict of the trial. But beware thinking of an appeal as a “second chance.” Appeals courts tend to give great deference to the findings of the trial court, especially when it comes to the facts of the case. The facts are not subject to appeal, as they have been established by the trial court through the calling of witnesses and the presentation of evidence, neither of which occurs at the appeals level. Instead, the appeals court reviews the trial court verdict for errors of law or other egregious mistakes. What this means for potential appellants is that even if a particular key witness on the other side appeared to be shifty or untrustworthy, the appeals court will not see the witness, but only read the transcript of his or her testimony in the trial record. Appellants thus are not able to exploit such weaknesses on the other side a second time, and must instead focus on why the trial court incorrectly applied the law to the facts of the case.
Even for a party that “won” at trial, the temptation may exist to appeal for a higher amount. Many states allow for attorneys’ fees to be awarded, so parties that were not given fees on top of damages received may want to challenge to see if the appeals court will award these attorneys’ fees.
But this temptation can be a major pitfall – by appealing some aspect of the trial court decision that they did not win, the appellant opens the door for the appellee to re-visit all other parts of the decision. This can lead to some huge regret, as it is not out of the realm of possibility that the appellee could get the verdict overturned during the appeal. Because of this risk, it’s imperative that an appellant take a long look at what exactly the trial court held and whether they want that result to be thrown open to challenge.
Furthermore, if an appeal is found to be frivolous or unfounded, the appellant may then be on the hook for paying the other side’s costs in responding to the appeal. Finally, just as you may have done for the initial lawsuit, look at the other side’s assets – if you’re trying to get more out of them and they don’t have any assets, then any victory on appeal is likely to be a hollow one, leaving you holding the bag and merely owing your own attorney for the costs of the appeal, without being able to recover anything for your efforts.
Both the costs and benefits of appealing a trial court decision can be tremendous, but one of the biggest keys is taking the surprise out of it by being prepared and obtaining an impartial and realistic assessment of your chances. Talk to an experienced appeals attorney about your case.