If you never lose a summary judgment motion or a trial, it doesn’t mean you’re a great lawyer. It means you don’t litigate enough cases. And when you do, you’ll need to decide whether to appeal.
Thanks to Veridct Magazine for publishing my article on when you should appeal. You can read it here.
Below are some of the key considerations:
Do you have a good faith basis for an appeal?
Because the expected value of an appeal is the upside of a reversal times the odds of obtaining that result, it might seem like an appeal in any high value case is a no brainer. After all, even a tiny shot at victory is one worth taking for a high enough payout. But if, after sobering up from your loss, you realize the trial court clearly got it right, walk away, especially if you intend to employ appellate counsel, whose careers depend on preserving credibility with the courts. Let go of your bad appeals, so you can win your close calls.
Do you have one great appellate issue, or several okay ones?
On appeal, quantity never substitutes for quality. Can you articulate one or two obvious errors that the trial court made and that prejudiced your client? Or are you more upset by the dozen close calls that seemed to go against you? If the former, you likely want to appeal. The best appellate briefs include a single enumeration of error, and nearly all the good ones include at most three. To get an appellate panel fully engaged on your matter, you need to quickly signal that you have a real and important issue that the court needs to dig into. Eight enumerations of error tell the court that you want them to second guess close calls, not correct legal error.
Did you preserve your best issues?
Before you get excited about a great appellate issue, go back to the record and identify how you preserved the error. Did you make an objection on the record to improperly admitted evidence? If not, did you file a ruled-upon motion in limine on that issue? If the trial court excluded a seemingly important bit of testimony or an exhibit, did you make the proper proffer?
When a key piece of evidence, or crucial objection, is not in the record, it simply will not be considered on appeal. Do not hold out much hope you can raise an unpreserved error under a “plain error” standard. It rarely works.
What is the relevant standard of review?
Make sure to consider the standard of review for any issue you are considering appealing. De novo review is the most exacting standard, under which appellate courts owe no deference to the trial court. The most common de novo appellate issues are grants of summary judgment. Erroneous or extraneous jury charges are also strong appellate fodder. Whether the charge was correct is judged de novo, and prejudice is presumed.
On the other hand, be cautious of challenges judged under an abuse of discretion standard, which encompass most of trial practice, including most evidentiary rulings. These judgments are rarely flipped on appeal. The same goes for “any evidence” or “clear legal error” standards.
Will the courts of appeals care?
Court of Appeals, unlike Supreme Courts, are, first and foremost, error-correcting courts. They are charged with addressing even minor errors that affect only the case at hand. But you should be cognizant of reality: it is easier to get the Court of Appeals fully engaged in cases of higher value, with more interesting facts, and where the legal rulings they make will effect other litigants going forward, and are not one off decisions for the benefit of your client.
You should not be scared of taking an appeal when you are right on the law. You should, however, adopt a bit of a sliding scale in closer cases. Where the facts are dry or the case value is small, you want a discrete legal issue that the appellate court will grasp immediately upon reading your summary of argument. If it takes you a half hour just to explain to your law partner what exactly it was that the trial court did wrong, you are facing an uphill battle on appeal, and will need a case with an engaging set of facts or that raises a critical legal issue.
Can you afford to hire appellate counsel?
Here is a simple truth. You are more likely to win on appeal when you hire qualified appellate counsel than when you handle an appeal yourself. This reality holds true even if you are a brilliant legal scholar, an innately excellent writer, and you won your law school moot court competition. Appellate litigation is a learned skill, honed over time. Dedicated practitioners have developed the writing skills specific to appellate briefs, are already familiar with key precedent, understand how particular appellate judges think, and have spent their careers building credibility with the appellate courts. The result is that part of vetting whether to pursue a case on appeal is determining whether it is valuable enough to bring in co-counsel to get the job done right.
One thing you should consider doing now, if you work on contingency, is including an appellate escalation clause in client fee contracts. If your contingency fee goes up by 5% when the client asks you to appeal, hiring qualified appellate counsel will feel less like money out of your pocket.
Did you mess something up before the trial court?
A bad loss is often a time for second-guessing. What could you have done differently? Where a reasoned assessment of your litigation strategy reveals that you made an error of judgment, that conclusion augers in favor of appealing a close case. If your mistake was one that arguably falls below the standard of care—perhaps you miscalculated a deadline or simply forgot it—you may have malpractice exposure and should consider (in consultation with your own attorney) every avenue to fix the problem.
Who can give you a second opinion?
Finally, when the answer is not obvious, ask someone else. You likely know your matter better than anyone else in the world . . . but sometimes too much knowledge is a dangerous thing. Find an attorney you trust with minimal prior knowledge of your case—or call appellate counsel—and get his or her take. If you’d like to call Kastorf Law, you can reach us here.