You have convinced the trial court to dismiss the case against you. Or you have endured the agony of a jury trial, and the jury awarded damages against your company. Is this the end of your case?

Not necessarily. In almost all civil cases, the losing party has the right to appeal. If you won the case at trial, your instinct may be to soldier on and resist further settlement overtures. If you lost, your instinct may be to seek exoneration at any cost. However, deciding on a proper course of action requires that a party understand the appellate process and how it differs from a trial.

How Is an Appeal Different?

A court of appeals answers the question: did the trial court make a legal error in deciding the case? Therefore, the court of appeals will not hear testimony from live witnesses or consider new evidence. The court reviews only the written record generated in the trial court — the documentary evidence admitted, the transcript of the testimony, and the affidavits and discovery materials filed with the court.

The differences between trial practice and the appellate process alter the types of skills needed for success. Handling an appeal does not call for the aggressive quick-thinking of the trial lawyer or the diligent legwork of an attorney preparing the trial. An appeals court considers written arguments that analyze the law and the written record. A party may be limited to only 30 to 50 pages in presenting its written argument. The court, in its discretion, may allow the attorneys to present oral argument, but it typically is limited to as little as 15 minutes per side.

The typical appellate court decides thousands of appeals in a year. In fiscal 2001, the U.S. Court of Appeals for the Eleventh Circuit, based in Atlanta, with 12 regular judges and several senior judges, disposed of over 4,000 appeals on the merits. Therefore, in an appeal, the emphasis shifts to effective writing skills. A party may have only 30 pages to grab the court’s attention and explain why the outcome of a weeklong jury trial should be set aside.

A recently published survey of appellate court judges in California emphasized the unique skills that are required for effective appellate advocacy. The authors surveyed the preferences of the judges in one California appellate court on every subject from writing styles and proofreading to the use of the record. The appellate judges noted a wide variety of shortcomings in the drafting of written briefs, leading the authors of the article to conclude that in civil cases “[s]ubstantial numbers of appellate briefs apparently interfere with their own messages and fail to serve the interests of the advocates’ clients.” The same judges looked with more approval on the written briefs in criminal cases, which the authors attributed to the fact that criminal appeals were often handled by more experienced appellate practitioners.¹

What Standard Does the Court of Appeals Apply?

In evaluating an appeal, an important consideration is what is known as the “standard of review.” In reviewing the actions of a trial court, a court of appeals will show greater deference to the trial court on some issues. Therefore, the type of issue raised and the standard of review affect the likelihood an appeal will succeed. Evaluating an appeal requires that a party understand how high a hurdle the party must jump over to succeed.

Rulings on questions of law are reviewed “de novo,” Latin for “over again.” The court of appeals gives no deference to the action of the trial court. Review under that standard is more likely to result in a reversal. The issues reviewed “de novo” are generally pure legal issues: “what is the law that applies in this case?” as opposed to “what are the facts in this case?”

A court of appeals reviews some actions, such as the admission or exclusion of evidence or the denial of a request for more discovery, under an “abuse of discretion” standard. The court of appeals does not ask “was the trial court’s decision correct?” The court asks whether the trial court’s decision “falls within a broad range of permissible conclusions.”² An appellate court will let stand a ruling it finds “reasonable” even if it might not have made the same ruling in the first instance. Review under that standard is less likely to result in reversal.

An important limit on the power of appellate courts is their inability to judge the credibility of witnesses. A party cannot successfully appeal by arguing that “the plaintiff lied” or that the four defense witnesses were more persuasive than the single plaintiff’s witness. The court of appeals ordinarily will not rule that a witness could not be believed or compare the relative strength of the evidence presented by the two sides at trial. The court will affirm a verdict if there is “any evidence” to support it. Therefore, the party seeking to overturn a verdict must show that the record contains no evidence to support the verdict. This can be a high hurdle.

Knowing the standards of review can guide a client in deciding both whether to appeal and how to appeal. Although a party might feel strongly about a particular claimed error, a high standard of review might make that issue an unattractive issue for appeal. A clear-headed analysis of an appeal may require a party to set aside some issues and focus on fewer issues that offer better chances for success.

What Are the Chances of Success?

As might be expected, high burdens on appellants often mean that the statistical incidence of success in appeals is relatively low.

In fiscal 2001, the U.S. Court of Appeals for the Eleventh Circuit reported a reversal rate in private civil cases of 13.9 percent. The reversal rate in private civil cases in all federal appellate courts was 11.7 percent. These reversal rates are modestly higher if you include partial reversals.

Should these statistics discourage parties that want to appeal (or embolden parties responding to appeals)? No. But they should provide litigants with a reality check. An appeal is a high-risk/high-reward undertaking. Evaluating an appeal requires an objective assessment of the case and a fresh approach. A party may need to suppress the urge to appeal every perceived error and focus on the issues that have the highest possibility of success. Why should merely repeating in the court of appeals the same arguments that failed to persuade the trial court produce a different result?

Do I Have Any “Friends” Who Can Help Me?

A factor that often strongly influences the outcome of an appeal is the participation of non-parties known as “amici curiae,” or “friends of the court.” They are persons or groups without a direct stake in the outcome of the case, but they may have an interest in the legal issue presented in the appeal. Such “friends of the court” can be government agencies, trade associations, public interest groups, or other businesses or organizations that may face cases raising similar issues. Marshalling support from these friends of the court can often have a favorable impact on the outcome of the case. In one case, our firm represented a magazine publisher sued for libel. An issue arose in the case of whether the publisher was required to reveal the names of persons with whom the author had spoken in writing the article. In support of our client’s position, we enlisted the help of two newspapers, who filed briefs in the case.³ In another case involving the impact of a provision of the bankruptcy code on a claim against shareholders to recover the merger consideration those shareholders had received, the Securities and Exchange Commission filed a brief in support of our clients’ position.⁴ Obtaining the right support for your position can help convince the court that your appeal raises important issues.

What Are the Costs of an Appeal?

Aside from the attorney’s fees involved in an appeal, analyzing the risks and rewards of an appeal requires consideration of other costs.

The first consideration is the time needed to complete an appeal. In fiscal 2001, in the U.S. Court of Appeals for the Eleventh Circuit, the time period between filing of a notice of appeal and a decision on the merits was 9.5 months. Judgments in federal court earn interest at a rate tied to the one-year Treasury bill rate at the time of judgment. Judgments in Georgia state courts accrue interest at the rate of 12 percent per year. Therefore, the price of losing an appeal can be an increase in the damages that need to be paid.

Appealing a money judgment may also require posting a bond. In federal court, the filing of an appeal does not automatically prevent the winning party from taking actions to enforce a money judgment such as placing liens on real estate and garnishing bank accounts. The only means of stopping such activity while the appeal is pending is posting a bond. Bonds ordinarily require payment of a premium of five or ten percent of the face amount of the bond. Therefore, the cost of appealing a $500,000 judgment can include a bond premium payment that may never be recovered by a party.

What Will Improve My Chances on Appeal?

If you suffer an adverse judgment and are contemplating how to proceed, a few steps might improve your chances on appeal or, at least, provide you with a more realistic assessment of your chances on appeal.

• Have someone take a fresh look at the case. By the time a party gets to the appellate stage, it may have invested years of effort in the case. The party may also have become emotionally invested in advocating its position. A fresh pair of eyes can provide the clear-headed analysis that can distinguish the potentially winning issues on appeal.

• Be realistic in your analysis. After considering the standards of review and the range of potential issues to appeal, focus on the one or two issues that present the highest probability of success. Limiting the issues on appeal increases the chances that an overburdened appellate court will pay attention to your case.

• Consider using an experienced appellate practitioner. Like many other areas of the law, pursuing an appeal requires a unique skill set. The skills that best serve an appellate practitioner may not be the same skills that make the best trial lawyer. An experienced appellate practitioner may be best able to craft a written and oral argument that provides the best chance on appeal.

Knowledge is power. Understanding the appeal process and its risks and costs can help you make better decisions in an appeal.

Endnotes