When You Should Appeal

Some attorneys like to appeal every case that the client can afford to pay for.  Others don’t agree and file an appeal only when they see clear error.  I don’t agree that there is a blanket rule for appeals.  It should be a case-by-case decision, made by the client with input from the attorney.  Keep in mind, an appeal is not a do over, different standards apply than applied in the trial court. If, for example, the trier of fact (jury or judge) found a critical fact against your client, then, with only very limited exceptions, the appellate court will defer to the finding, even if the appellate judges might have found the fact differently if they had the power to do so.  Thus, a case where you might have had a fighting chance at trial might be unwinnable on appeal.   Appeals courts really don’t like reversing a lower court too.  Consider this quote:  “We will not reverse a determination for clear error unless it strikes us as wrong with the force of a 5 week old, unrefrigerated, dead fish.”  S Industries, Inc. v. Centra 2000, Inc., 249 F.3d 625 (7th Cir. 2001).

I like to discuss with my client whether or not a loss on appeal will make things worse (not counting the extra legal fees and costs).  Keep in mind that trial court decisions are not precedent, appellate decisions may be.  If we lose the appeal, will having a precedent set against your client be bad for the client?  This question needs to be carefully analyzed in cooperation with the client.

My rule of thumb is simple:  what are the merits of the appeal?  If the judge made a bad decision, you appeal it. If the judge made a borderline decision and there’s enough at stake and client can afford it, you appeal it.   Most often the appellant will lose. But not always. It’s an uphill battle.  I always analyze things carefully and work closely with my clients to make that decision.

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