Twelve Practical Considerations When Your Case Is on Appeal

Responses to: Why would my case go up on appeal? Do I have to respond to an appeal? How do I find an appellate attorney? What happens after the Notice of Appeal is filed? and more...

1. Why would my case go up on appeal?

Either you won the case and the other party is appealing the decision of the judge or jury, or you lost and you are appealing.

2. Do I have to respond to an appeal?

If you won, and the other party is appealing, you don’t have much choice but to try to preserve your victory. You have to deal with this one way or the other. The good news is that more cases are affirmed on appeal than reversed on appeal.

3. If I lost, how do I file an appeal?

If you lost, and you are thinking about appealing, you have a few days to think about it and do some research. You have a hard deadline to file a Notice of Appeal, which differs depending on the court and case.

4. What happens after the Notice of Appeal is filed?

The party filing for appeal will request the record, and the other party can supplement the record. Once the record is complete, there will be deadlines for filing briefs.

5. What should I do first?

Talk to your trial attorney about what he or she thinks about your chances on appeal. The bad news is that it is usually harder to get a reversal on appeal, but there are exceptions.

6. Do I need an appellate attorney?

You will probably need an appellate attorney, because appellate research and writing is quite different from trial work. You can take a couple of approaches. One is to turn the case over to an appellate attorney completely, and have the attorney use the record generated in the trial court. Another approach, that we’ve used quite successfully, is for your trial attorney to work with an appellate attorney. The trial attorney knows the records and arguments, and can save time for the appellate attorney. The appellate attorney will know more about writing appellate briefs, and can write a brief more clearly, and in less time, improving your chances of winning. Your trial attorney and appellate attorney may make a good team, and may both put their names on the briefs. We have really enjoyed our cases that were structured this way, and they have saved time and money for the client.

7. How do I find an appellate attorney?

You can look for an attorney yourself, or have your trial attorney look for you. Usually, you (or your trial attorney) will need a consultation before choosing an attorney, and you might want to consult with more than one attorney.

8. Will appellate attorneys give free consultations?

You are unlikely to get a free consultation from a good appellate attorney. Appellate cases are rarely taken on contingency, and are usually billed hourly, so you should be prepared for this.

9. Why won’t the appellate attorney tell me right away if my case is good?

After the consultation, the appellate attorney will need to do an analysis of the case and legal issues. This analysis averages from 4-10 hours, but can take longer on a complex case. You will pay the attorney for the analysis. After the analysis, the attorney will give you an opinion on how much of a chance you have on appeal. If you are thinking about filing an appeal of a case you lost, the attorney can recommend whether that would be wise.

The attorney will also tell you whether he or she will take the case. If the attorney will not take the case, she will provide you with her legal research and what she thinks about the case.

10. Shouldn’t the attorney take the case if I’m willing to pay?

You may wonder why the attorney won’t just make the arguments you think she should make. Aside from the fact that reputable attorneys don’t work this way, appellate work is much more of a pure matter of law than trial work. An appellate attorney will often not take a case if she does not believe the legal argument is justified. It involves ethics in making legal arguments and an attorney’s reputation for making justifiable arguments. At other times, the attorney will take the case, because she thinks the argument is legitimate, but will still warn you that the argument is not likely to win. Before you invest the amount of money required for an appeal, you should have some idea of how solid your case is.

11. Can I get my money back on the appeal?

If you have a ground to ask for attorney fees, such as a statute or contract provision, you can also ask for your attorney fees on appeal (and you should discuss this with your attorney). If your case is under the “American rule,” where each side pays its attorney fees, you are also not going to get your attorney fees on appeal.

12. How much lead time do I need to give the attorney?

You should give the attorney as much lead time as possible. It may take several weeks for the attorney to analyze your case, depending on how busy the firm is. It will almost certainly take several weeks to work on the briefs. The good news is that anyone can file a Notice of Appeal, including you and your trial attorney. So you don’t need to have a final decision about your appellate attorney, or from your appellate attorney, at the time the Notice of Appeal is due.