Should You Appeal?

FEATURE
Should You Appeal?

BY KURT G. KASTORF

There are occasional litigators that have never lost a trial. Generally, though, those litigators either have a short résumé or are not aggressive enough in taking tough cases to a jury. Even rarer is the attorney who prevails on every motion, be it to dismiss, for summary judgment or otherwise. All that is to say the rather obvious: at some point in any trial lawyer’s career, the prospect of whether or not to appeal an adverse ruling comes onto the radar. To put it slightly differently, each and every one of us is likely to be “aggrieved” at some point, in appellate parlance.

So, should you appeal a tough trial court loss? At its most basic level, deciding whether to appeal poses the same fundamental question as any meaningful initial case intake: Does the probability of success times the payoff of a win outweigh the cost, in time and expenses, of pursuing the matter? Because the direct cost of an appeal is relatively stable and not terribly expensive – at least compared to trying a complex matter in front of a jury – the key to assessing whether to appeal is to engage in a sober and careful analysis of your likelihood of success. This article walks through the most important questions you should ask yourself in deciding whether to pursue an appeal.

Do you have a good faith basis for an appeal?

First things first. The initial question to ask is whether you have any good faith basis for pursuing an appeal. Because the expected value of an appeal is the upside of a reversal times the odds of obtaining that result, an appeal in any high value case might appear to be 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, you should walk away. Doubly so if you are intending to employ appellate counsel, who have an institutional interest in maintaining their credibility with the appellate courts. If you send your appellate counsel bad cases, it makes it harder for them to 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. If the latter, walk away. The very best appellate briefs typically include a single enumeration of error, and nearly all the good ones include at most three. If you believe the trial court erred on a dozen rulings, all seemingly mission critical, you likely need to rethink in more objective fashion.

The reality is that appellate courts are both overworked, and, where possible, deferential to the trial court’s reasonable decisions. 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. If you have a clear sense of the specific argument you are going to win, you have a decent shot. If you are hoping that a slew of minor errors or close judgment calls will add up to a reversal, it is probably time to cut your real and potential losses.

Did you properly 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?

In the heat of trial, attorneys often either forget or make split second strategic calls not to flag particular issues for the court. (This is one of several reasons you should consider hiring embedded appellate counsel in any important trial). For each error you are considering raising on appeal, identify how, specifically, you preserved the issue. After all, the Court of Appeals requires that an appellant identify with specificity how any claim of error was properly preserved at the trial court level.

If a key piece of evidence, or crucial objection, is not in the record, it simply will not be considered on appeal. Although some unpreserved error is subject to review for “plain error,” the standard there is exceptionally difficult, requiring an error likely to produce grave miscarriage of justice or seriously affect the fairness of the proceedings. Appealing waived issues is rarely a winning strategy (read: basically, never).

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 evidentiary rulings. A trial court’s judgment on a Rule 403 prejudice question, for example, is rarely flipped on appeal. Likewise, avoid “any evidence” or “clear legal error” standards. The “any evidence” standard of review can pose a severe obstacle to appeal where you simply have a firm conviction the jury reached the wrong conclusion on a disputed fact. Just a bit of evidence in favor of their determination will sink your appeal.

Will the court of appeals care?

The Court of Appeals, unlike the Supreme Court, is, first and foremost, an error-correcting court. While the Supreme Court grants certiorari only in the most legally significant matters, the Court of Appeals is 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, no matter the size or cosmic significance of your appeal. You should, however, adopt a bit of a sliding scale in closer cases. Where there is a discrete legal issue to present that an appellate court will be able to grasp immediately upon reading your summary of argument, the court’s intrinsic interest in the subject matter matters little. Where, in contrast, 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 raising a critical legal issue to make sure the court gives your matter the time and attention necessary to get the result you want.

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 and an innately excellent writer. Appellate litigation is a learned skill, honed over time. Maybe you would have been the best appellate advocate in Georgia if you had specialized in that practice area, but you did not. 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. Last, but far from least, they provide a fresh prospective on your matter, and can quickly spot issues you may have become blind to after months or years of obsessing over the facts.

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. At the extremes, this call is an easy one. If your case is worth in the low five figures, you will have a tough time finding appellate counsel on a budget that makes hiring them financial sensible. If your case is in the high six figures or seven figures, hire appellate counsel. If they increase your chance of a successful outcome by even a few percentage points, they have paid their own way. (Not to mention, saved you time you could be spending on other matters.)

It is everything in the middle that gets tricky. If your case involves a discrete legal issue already decided by the appellate courts, and you’re completely comfortable with the procedural pitfalls of filing an appeal, it may make sense to go it alone. If you need the Court of Appeals to clarify conflicting precedent (or you do not know the difference between a discretionary and an interlocutory appeal) hire appellate counsel. If this advice sounds a bit too hazy, the rule of thumb is that cases that have enough value to be worth pursuing tend to benefit from specialized counsel.

One thing you should consider doing now, if you do not already, 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. Where 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. Where your decision before the trial court falls well within the bounds of rational professional judgment but was, in hindsight, wrong, you may still consider whether you feel a professional obligation to try to set the matter right. Taking an appeal even at a potential loss is sometimes the correct choice both to protect yourself and to do right by your client.

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. A second opinion can be critical where you have poured so much effort into a matter that you can no longer see the forest for the trees.

CHECKLIST FOR APPEALS

 

Who can give you a second opinion?

Did you mess something up before the trial court?

Can you afford to hire appellate counsel?

Will the court of appeals care?

What is the relevant standard of review?

Did you properly preserve your best issues?

Do you have one great appellate issue, or several okay ones?

Do you have a good faith basis for an appeal?

 

ABOUT THE AUTHOR
Kurt G. Kastorf is an attorney at The Summerville Firm. He has worked on well over one hundred appeals; his Firm has handled hundreds more. Trial attorneys in Georgia regularly rely on Kurt for candid advice on whether to appeal an adverse judgment.

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