Preserving Your Case For Appeal


Appellate review differs significantly from litigation. Statistically, appeals stem from receiving the most undesirable outcome for a client. Appealing from a trial court decision can be daunting and confusing for attorneys who are not prepared. Attorneys are so busy preparing for and during trial that they tend to forget about preserving the case for appeal. Here are some tips for preserving your case for appeal.

There are some important questions you will want to consider when evaluating a potential appeal:

Is the appeal meritorious and taken for a proper purpose?

Your actions as an attorney must always follow a code of moral and ethical standards. Ensuring an appeal is not frivolous or being filed for the wrong reasons prior to filing reflects on you and will likely lead to malpractice or ethical claims filed with your bar association.

What will it cost and how long will it take?

Always weigh the cost and time against the benefit of a successful appeal or the detriment of an unfavorable appeal. Discuss these things with your client, filing for an appeal may be expensive and you will not get a decision for about three months or more (and the frequency of successful appeals should be taken into consideration). After the cost of a lengthy trial, some clients will not be able to afford the time or money to continue fighting.

Does the client have the emotional stamina to continue?

Now that the trial has ended and your client has received an unfavorable decision by the trial court and you believe there has been a legitimate mistake, what is the status of your client. Cases that end in the worst possible way for your clients tend to take a serious emotional toll on the client. Some clients won’t be able to handle dragging out the case any longer and it is not worth more mental anguish. Does the client have a support system?

What will the appellant achieve by successful appeal?

You should always consider IF your appeal is successful, what is your client going to gain or achieve that they were otherwise deprived of? Is the achievement worth the cost and time of earning a successful appeal?

Is settlement a better option?

Settlements are always worth considering when deciding whether to appeal. Whether a settlement would be a better option than appealing is a case-by-case consideration and depends on a number of factors. You should discuss settlement options or proposals with your client before determining to file an appeal; a settlement will be less expensive and much more efficient than filing for an appeal.

Characteristics of the Civil Appellate Process

The key to the appellate process is the written record. There is no jury and no litigation, the transcript will be used to determine how the law applies to the facts on record from the trial court. To succeed on appeal there must be prejudicial error. Trial courts make mistakes every day, there are hundreds of thousands of rulings that go through the system and mistakes are inevitable. The appeals process is in place for this reason. The appellate court will not look at everything that was decided by the trial court. There is no checking facts or reweighing of evidence.

To be reviewed by the appellate court the mistake must have fundamentally affected the outcome of the case and this is based on a “but-for” analysis. This means that “but-for” the alleged mistake by the trial court, the outcome of the case would have been different. This is a two-step process: first, the appellant must demonstrate there was intact an error; and then, that the error was so prejudicial it impacted the outcome of the case.

It is important to note that not everything can be appealed. Under the ‘Final Judgment Rule’ you can only appeal a final judgement from the trial court or by statute. However, writs are used as a supplement to the appellate system for the situations in which an appeal is appropriate before a final judgment has been made. The court will consider a writ on a limited basis, many are denied even those made on reasonable grounds.

Sequence of Events

It is very important you file the notice of appeal on time. If you missed the deadline to apply for appellate review, the appeal is dead and you have lost the chance to re-apply. This will lead to malpractice claims from your client so make sure to keep these dates straight. There are three deadlines for filing: (1) 60 days from courts mailing of entry of judgment; (2) 60 days from party’s mailing of entry of judgment; and (3) 180 days after entry of judgment.

Preparation of the appellate records requires that you have hard copies of the court transcripts accompanied by a fee and a copy of the record. It is imperative to prepare a complete record – if it is not in the record, it never happened. 

In a civil case, the appellant must present both an adequate record on appeal and a compelling appellant’s opening brief. It is so important to rethink and reorganize your arguments to specifically address the issues on appeal. One of the easiest ways to make your appellate brief more effective is to eliminate all extraneous arguments and stay focused on only the issue(s) on appeal. Highlight your strongest argument(s) for appeal even if that point may not have been as important during trial. Remember: an appellant waives or forfeits any issue not coherently presented in the appellant’s brief. This will likely result in a malpractice claim(s) so be careful.

The general timeline of events on appeal:

  1. File a notice of appeal
  2. Prepare appellate record
  3. Briefing
  4. Oral argument
  5. Decision filed, usually within 90 days.
  6. Petitions for rehearing and review
  7. Remittitur issues
  8. Final judgment/recovery of fees and/or costs

Failing to consider your appeal when preparing your pleadings, and failing to change your argument on appeal are two common mistakes attorneys make when pursuing an appeal. It is always a good idea to hire a consultant for the life of the case to ensure an unfavorable outcome is appealable in the end. You can also hire someone who is an appellate counsel to help with the case, of course with your client’s written permission.


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