Should I file an appeal? Many considerations come into play when making this decision, and here are some thoughts that may steer you in the right direction:
1. What Does the Client Want (Or Want to Spend)?
The first and most important consideration is the desires of the client. If the client is adamant about appealing the decision, this may quickly answer the question. As long as appealing wouldn’t be frivolous, whether to appeal is the client’s prerogative. But the pros and cons should still be explained.1 This includes addressing the reality of how much an appeal can cost. Filing an appeal can be time consuming and expensive in a way that is a surprise to a client who is inexperienced. Even if the client is dead-set on appealing, you should have this frank conversation.
2. What Is at Stake?
Next, consider what’s riding on the case. The stakes—such as key issues or the amount of money involved—make it necessary to pursue the appeal:
- Is life or liberty at stake? Some appeals, such as of criminal convictions or termination of parental rights, are often pursued because of what is at stake. If life, liberty, or another fundamental interest is on the line, appeal may seem like a natural next step.
- Is something else important at stake? Other issues can also be crucial to the client, such as the future of a business, millions of dollars, or the client’s career. If any of these is riding on the lawsuit, it may be impossible to walk away after a defeat at the trial level.
- Is appeal necessary to effect important legal change? An appeal can sometimes be the only way to achieve a client’s goals. Is the issue one that the client wants to address at the appellate level, perhaps by making new law or changing an unjust practice? If the district court was following law that you want changed or clarified by the appellate court, appeal may be the only way to achieve your goal.
- How much has already been invested? Resources already invested in the case may also be a key factor. Has the client already invested hundreds of thousands of dollars in the underlying case and spent years litigating? In that circumstance, what’s another $10,000-$80,000? If the client has put in a huge investment of time and money, appeal may be the only way to possibly recoup those otherwise lost resources.
3. What Are the Chances of Winning on Appeal?
Where the previously mentioned factors aren’t dispositive, clients often want to know at the end of the day, what are my chances? It’s the million-dollar question, and one that is hard to answer. Lawyers aren’t psychics and no one can predict with 100 percent certainty whether an appeal will ultimately be successful. But a thorough appellate analysis can at least shed light on these possibilities, and should allow for a rough estimate of percentage chances. While appellate co-counsel can often serve as a valuable resource in this way, here are some things to take into account:
- What was the district court’s judgment? Was the case dismissed on a grant of summary judgment, or was a jurisdictional question of law dispositive? Practically, whether or not an appeal is a good idea usually turns on the posture of the case and what the judge below ultimately ruled. Some types of judgments are overturned more often than others, and analyzing this factor can help inform whether the chances of appeal might be good or bad.
- Do significant errors form the basis of the appeal? Perhaps one of the most important parts of a good appellate analysis is determining what issues could be appealed. At the Colorado Court of Appeals, the court is focused on correcting errors, so there usually must be an error in order to appeal. This is usually true for the Tenth Circuit as well. This step requires legal analysis and a keen eye toward spotting these issues. Knowing whether the case has any viable issues for appeal is not only central to the ultimate decision, but helps ensure any appeal is not frivolous or groundless. A frivolous appeal is not only an ethical problem, but could mean your client has to pay the other side’s attorney fees.
- Were the important issues preserved? Once any issues are identified, it is important to determine whether they were properly preserved. As a general matter, an appellate court will refuse to decide an issue raised for the first time on appeal. If a good issue probably can’t be raised, the chances of winning clearly diminish. And even if an exception to the general rule applies, failure to raise an issue normally affects the standard of review.
- What is the standard of review? The standard of review is what the appellate court will use to decide whether the district court’s decision should be considered anew, or given some varying level of deference. This can make or break an appeal. For example, it is much harder to win under a plain error standard than it is to persuade the court reviewing an issue de novo that the district court made an error of law.
At the end of the day, whether or not you should file an appeal is a deeply subjective and difficult decision. If you and your client are not sure, consider engaging an appellate attorney to assist with the pre-filing analysis stage. Lawyers at Telios Law often assist trial attorneys in this phase of the case by providing an appellate analysis. In our experience, particularly where an appeal is not viable, clients do not begrudge this additional legal work if it ultimately saves them more money in the long run by avoiding an appeal that will probably fail.
1Note that in some types of cases, filing an appeal is mandatory if the client wants it, even if you think it is frivolous and groundless.
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