19 How Do I Appeal My Loss?

The verdict had devastated Ron, who had put everything into prevailing in his lawsuit. Ron knew that his life wasn’t over when he lost his lawsuit. He still had his freedom. But Ron felt like he didn’t have much else, not his business, employment, finances, reputation, or relationships, all of which depended, in one way or another, on a favorable outcome to his lawsuit. And so when Ron lost, he immediately began thinking of an appeal as his only remaining option. His attorney hadn’t been optimistic about an appeal. Yet his attorney was willing to undertake the appeal under the same contingency-fee agreement that Ron had signed at the outset. An appeal was Ron’s only remaining hope. 

Appeal

An appeal is a request to a higher court to overturn the lower court’s judgment. An appeal is a sort of second chance at prevailing in your lawsuit, although an appeal is generally limited to correcting errors in the trial court proceeding. An appeal is seldom a full-on opportunity to retry your case to get a better outcome or indeed the opposite outcome. If you lost your lawsuit in the trial court, you have no guarantee of prevailing on appeal. Your chances on appeal may indeed be substantially less than your chances of having prevailed in the trial court. Appeals can thus sometimes be more like the proverbial Hail Mary desperation pass attempt in football than a substantial opportunity for a better outcome. But let your appeal attorney advise you of your probability of prevailing on appeal. Consider the following appeal issues to help guide you. 

Right

A party’s right to an appeal generally arises only when the trial court enters a final judgment. Court rules discourage two courts from hearing the same case at once. Your state’s court rules may permit an interlocutory appeal to an appellate court while your case is still ongoing in the trial court, but interlocutory appeals are rare and discouraged. Generally, you’ll have to wait until the trial court completes everything else it has to do to enter a final judgment, before you get to challenge the error you believe it made that caused your loss. Court rules generally then guarantee at least one appeal of right. Your appeal of right is often to a state or federal mid-level appellate court rather than all the way to a supreme and final court. If the mid-level appellate court rejects your appeal, you may have an opportunity to ask the next-level supreme court for a discretionary review, which supreme courts grant in only a small percentage of cases. You likely have one good shot at an appeal of right. 

Representation

You’ll almost surely need a skilled appellate attorney to succeed in your appeal. The attorney who represented you in the trial court may or may not have appellate skills. You may need to retain a different attorney simply to get the skilled representation you need. The attorney who represented you in the trial court may or may not have an obligation to represent you, or an interest in doing so, under the initial retainer agreement. If your attorney represented you on a contingency-fee agreement, the attorney may have a strong financial interest in undertaking your appeal. The contingency-fee agreement likely gives the attorney that option. But whether the attorney agrees to pursue the appeal may very well depend on the likelihood of an appeal prevailing. Whatever your situation, if you determine to appeal, then ensure that you have qualified appellate representation. Appellate skills differ markedly from trial skills. 

Timing

The court rules applicable to your case will have a time within which you must initiate your appeal, usually calculated from the date the trial court entered its final judgment. Your appeal period may be as short as 15 or 20 days or as long as 28 days, 56 days, or a longer period. Appellate rules may allow you a late-filed appeal if you can prove good cause for your delay. Consult your appellate attorney immediately on your judgment’s entry so that your appeal is timely. Your attorney may need to take several steps before filing your claim of appeal, all of which can take time to complete. Do not miss the time for filing your appeal, or you may lose your appeal rights.

Stay

Just because you take an appeal does not mean that you need not comply with the trial court’s judgment. To the contrary, judgments generally remain enforceable unless the trial court stays the judgment on your request. Typically, the court rules for enforcing a judgment gives the losing party a brief period such as 15, 21, 28, or 30 days to take an appeal and arrange a stay, before the opposing party may enforce the judgment. But in the meantime, don’t take actions that appear to violate the judgment or make its enforcement more difficult, at least without first consulting your attorney. If you do appeal, and the appeal lasts for six months or more as is typical of appeals, then you’ll likely need a stay in place to avoid enforcement. You wouldn’t, for instance, want to have the opposing party garnishing your wages or bank accounts while you appeal. Those enforcement actions could make your appeal practically meaningless. Instead, seek a stay of the judgment while you pursue your appeal. Even if your appeal is unsuccessful, the appeal’s duration may enable you to make adjustments that will soften the blow of the judgment, once your appeal is over and the judgment takes full force and effect.

Bond

If you are appealing a money judgment against you, one that you do not intend to pay at least until the appeal concludes, the court rules applicable to your case may require you to post a bond if you are to obtain a stay pending the outcome of your appeal. If you have insurance covering the judgment amount, the court may accept the insurer’s commitment to pay, or the insurer may provide the bond. If you are unable to pay the judgment or to afford or obtain a bond, then the judge may have the discretion to order a stay of the judgment anyway, without a bond, pending the outcome of your appeal. Just be aware that a bond or other security may be necessary to stay the judgment for the duration of your appeal. 

Record

To pursue an appeal, you must generally ensure that the appellate court receives an appropriate record of the trial court proceedings from which you take your appeal. If you lost your case on a pretrial motion, and your claims never went to trial, then the record would generally include a transcript of the motion hearing, plus of course the pleadings, motions, responses, briefs, and other court papers in the trial court’s official files. Your attorney would then have to order the hearing transcript and show the appellate court that you ordered the transcript, to perfect your appeal. The same would be true if you lost after trial, that your attorney would generally have to show that you’ve ordered the trial transcript to include in the record on appeal. Keep in mind transcript costs. Transcripts can not only take time to prepare but can also be expensive.

Briefs

Once the full record is complete and available, your attorney must draft and file your appeal brief within the month or so that the appellate rules allow. Your attorney’s research and drafting of your appeal brief is likely the single most-important step in affecting the outcome of your appeal. You won’t win your appeal without a convincing appeal brief. Your attorney must summarize the proceedings and record, citing pleadings, exhibits, and transcripts. Your attorney must also identify the trial court’s errors as the appeal issues for the appellate court to consider and address. And your attorney must show and analyze the authority requiring that the appellate court correct those errors. The opposing party will file a responsive brief within a like period of thirty days or so. The panel of appellate judges hearing your appeal will then review the parties’ appeal briefs, often with the help of appellate clerks. A clerk or judge may draft a confidential memorandum or other preliminary document analyzing the issues and recommending areas of inquiry for further study. 

Argument

Appeals of civil cases generally include an opportunity for oral argument before the panel of judges deciding the appeal. The judges hearing the oral argument will have already read the parties’ briefs and may, in effect, have made a preliminary decision. The attorney for each side gets the opportunity to make a relatively brief oral argument, often promptly interrupted by the judges with their questions and observations, for the attorney to respond. The judges may, though, be directing their questions and observations toward one another, preliminary to their joint deliberations over a decision, as much as to the attorneys. You may thus be readily able to discern how the judges are leaning, from their questions and observations. Appellate judges do not, though, announce their decision at the conclusion of the oral arguments. They must instead deliberate on a joint decision.

Standard

The standard that the appellate judges apply to your appeal may go a long way toward deciding it. Some trial court decisions, particularly those evaluating first-hand the credibility of witnesses, the appellate judges must afford respect, given that appellate judges hear and view no witnesses. They instead decide your appeal on a cold record, devoid of first-hand impressions of witnesses. But other trial court decisions, particularly interpretations of law, the appellate judges need not afford any respect, given that appellate judges have at least the law knowledge and perhaps greater law knowledge and legal reasoning skills than the trial judge. In those instances, the appellate judges instead decide your appeal as if on first impression, without giving any deference to the trial judge’s ruling. Thus, the standard of appellate review depends on the appeal issues you raise and the nature of the trial court decision that you challenge. Your attorney will know what issues to raise and how to identify and apply the correct appellate review standard. Just know that some appeals are easier to win than other appeals, depending on the review standard. Ask your attorney to advise you as to the likelihood of your appeal’s success, based on the applicable review standard.

Decision

You likely won’t know how long the appellate judges will take to decide your appeal. You may get their written decision within a week or so of the oral argument, or you may not get a written decision for a month or more afterward. The decision that you receive should be more than a one-line order to affirm or reverse the trial court. The decision should include the appellate court’s reasoning, which may run to several pages, depending on the number of issues and their complexity. But in any case, you should be able to clearly tell why the appellate panel ruled as it did. If not, your attorney may help you do so. The appellate court may have more options than either affirming the decision below or reversing it. The appellate court may alternatively remand the matter to the trial court to try again, making a new decision based on the appellate court’s directions and any further proceedings the appellate court directs or the trial court discerns. A remand can be either a win or a loss, depending on the second trial court outcome. But at a minimum, a remand can be a substantial chance for prevailing after a previous loss.

Review

If you lose in the appellate court, the rules governing your appeal may permit you to request that the same appellate panel that handed you the loss reconsider its decision because of a plain error in its opinion. The appellate rules may alternatively or in addition permit you to request that the full appellate court, not just a designated panel, rehear your appeal because of an error in the initial appellate opinion and the public significance of the appellate issues. Full court, or en banc, review is rare. So is a different decision by the same panel on reconsideration. You may alternatively have the right to ask a higher court, whether a state supreme court or the Supreme Court, to exercise its discretion to hear a further appeal. As already indicated above, high courts hear very few cases, making your success in that effort highly unlikely. You’ll much more likely have to live with your first, one, and only appeal decision. 

Settlement

Some cases settle while an appeal is pending. Indeed, your appellate court may require that you and your attorney attend a conference where your opposing party and attorney are also present, to discuss and explore settlement. Settlement talks during an appeal may not be as frequently fruitful as settlement discussions before a final trial court decision. After all, the trial court decision pretty much casts the die for the case’s outcome. The winning party may regard the losing party’s appeal as only a last-ditch, slim chance at reversing the trial court’s decision, in which case settlement talks during the appeal would need to reflect the appealing party’s major change in positions. Consider pursuing settlement on appeal, though, if your likelihood of winning a reversal is slim, and yet you may be able to use the pending appeal to at least save you a little off of the trial court’s judgment.

Reflection

If you have lost your case in the trial court, do you have a strong interest compelling that you consider an appeal? Is your trial attorney encouraging an appeal? Is your trial attorney committed to handling your appeal, and if so, at no cost or at additional cost? If your trial attorney is not qualified to pursue an appeal, does your trial attorney have a recommendation for appellate counsel? Can you afford an appeal? Can you afford a stay bond, or do you have insurance covering the judgment so that the insurer can post the appeal bond? What will the record on appeal include as to hearing or trial transcripts? Can you afford those transcripts? Do you wish to review your attorney’s draft appeal brief before its submission? Do you plan on attending your appeal’s oral argument? What does your appellate attorney believe the probability to be of your prevailing on appeal? Should you be entertaining settlement talks with your opposing party while your appeal is still pending?

Key Points

• An appeal asks a higher court to reverse the trial court’s decision.

• Parties generally have one appeal of right from a trial court’s decision.

• You need qualified appellate representation for a strong appeal.

• You have a limited time within which to appeal or lose your right.

• You may seek a stay of the judgment pending your appeal’s outcome.

• You may have to post a bond to obtain a stay or show your poverty.

• You may need to order a trial transcript for the appeal record.

• Your attorney will draft and file the appeal brief stating appeal issues.

• Oral argument of your appeal may influence your appeal’s outcome.

• The standard of review for your appeal may influence its outcome.

• You should receive an appeal opinion with reasons for the outcome.

• You may have further appeals to pursue, more difficult than the first.

• Settlement may be possible and advisable during your appeal.

Read Chapter 20.