Should You 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 get out of it 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 the case.

An appeal, even if successful, may not be the end of the matter. 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 groundrules 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 at trial. A significant number of civil cases settle after an appeal is begun and before oral argument – or, even, 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 appellate counsel to handle an appeal, you send a strong signal that you are taking the process seriously – this increases the pressure on the other side. That said, an ethical lawyer will not file a Notice of Appeal simply to gain a negotiating advantage if there is not an arguable issue.

The Costs Of Continuing To Litigate

Entering the appeals process means prolonging the emotional stress of litigation. The average civil appeal in California lasts over a year. Federal appeals are especially slow – often taking over 18 months.

In addition, of course, there is the cost. Appeals can be one of the less expensive parts of the overall 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 may have to post a bond if they want to stay the enforcement of a trial court judgment involving money damages pending an appeal. And a defendant that loses an appeal may also have to pay interest on money that is at issue – and the judicial interest rate is steep, 10 percent.

John Derrick makes your cost-benefit decision easier by quoting flat rates to handle most appeals. While there is never any certainty about the outcome of an appeal, some certainty about the cost is helpful. (Some idea of the typical range of fees is included in the FAQs section of this web site.)

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 weigh the evidence heard by the trial court or – with 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.” Its job is solely to review whether the law was correctly applied to what 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, even if the appeals judges would themselves have decided otherwise.

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 question 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 objections to trial court proceedings that were not previously raised by trial counsel. 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. (Although an appellate lawyer may be able to introduce new arguments concerning an issue.)

There are some ways around this. For example, an often-overlooked rule 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.

There are some other exceptions as well – and one of the reasons to hire an appellate lawyer is to use the services of someone who will not be unduly deterred by an unpromising trial court record.

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. Therefore, one “bad” result does not of itself tilt the legal balance against you if the same issue comes up in another case. 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.)

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 sizeable number do go on to succeed. With civil appeals in the California state courts, just over 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.