You have fought the good fight – but despite your best efforts, the trial court did not award all that your client desired. After the dust settles, what, if any, next steps should be taken?
By Michele M. Jochner, Appellate Lawyer
Many clients – and some attorneys – automatically jump to the conclusion that an appeal will readily “fix” whatever problems are perceived with the trial court’s judgment, and all will ultimately be as it should. However, taking an appeal is a time-consuming and often expensive endeavor, and both counsel and client should carefully and realistically consider all of the pros and cons prior to embarking on this new journey.
From the start, the attorney should make it crystal-clear to the client that an appeal is neither simply a second-bite at the same legal apple nor a “do over.” An appeal is not a new trial; instead, it is a paper review of what
occurred at trial. To this end, the task of the appellate court is to examine the trial court record to determine whether the lower court committed any errors of fact or law. The client must understand that he or she is bound by what is in the record, and that the appellate court takes no evidence and hears no witnesses.
Managing Client Expectations
When considering an appeal, you must manage your client’s expectations effectively. Have a frank discussion about the outcome: that despite investing additional tens of thousands of dollars to appeal the trial court’s ruling, after all is said and done the result may remain exactly the same – or become even worse. After the roller-coaster of a trial, emotions are running high and a client may want to do whatever it takes to get an unfavorable result reversed – even if the chances of doing so are low and the costs are high. This is fine, as long as the client fully understands the steps in the process, the expenses that will be incurred, and the risks involved.
An appeal is another full-round of litigation that often takes years to conclude and is undeniably costly. It requires the attorney handling it to have a deep understanding of all aspects of the trial court record, as success in briefing and oral argument hinges upon counsel’s mastery of the facts and the application of the law to those facts. If the attorney handling the appeal is not the same one who tried the case, the client must be prepared to accept additional expense for the time the new attorney needs to get up-to-speed with all that occurred prior to judgment. This cost alone can be significant where the record is voluminous.
The briefs, which are often lengthy and complex, tell the client’s story. Page limits vary by jurisdiction; in Illinois, for example, opening briefs are capped at 50 pages – or 80 pages if cross-relief is also requested. Needless to say, researching and crafting these documents is not inexpensive. Finally, if oral argument is granted, preparation for that all-important give-and-take with the appellate panel is likewise a very time-consuming and expensive process.
Appeals: Different Standards of Review
The decision of whether to pursue an appeal often depends on the types of issues that will be raised. Different issues often have different standards of review. The standard of review is important because it is the lens through which the appellate court considers your case. The spectrum ranges from nearly complete deference to the trial court where decisions based upon discretion are involved, to no deference being given to issues purely legal in nature; claims of erroneous factual or evidentiary rulings fall somewhere in between the two.
An appellant stands in the strongest position if a pure issue of law can be raised, as it is subject to de novo review. On the other hand, an appellant is in the weakest position if the claim of error is one of abuse of discretion, where the most deference is afforded to the trial court’s ruling. The client must understand the effect of the standard of review – especially where it means that the appeal does not start out on a level playing field due to the deference accorded to the trial court’s judgment.
You should also make your client aware that taking an appeal of a portion of the judgment could be the catalyst the opposing party needs to file their own request for cross-relief on other parts of the judgment that were decided in your client’s favor. By putting the trial decision in play, the other side could ultimately have the favorable aspects of the decision overturned, and your client could be in an even worse position than prior to the appeal. Make a risk assessment as to what potential issues could also be raised by the other side, and the probability of success if that occurs.
Is the Loss Worth Appealing?
The client could also be on the hook for the other side’s fees in defending the appeal. Because attorney fee-shifting often occurs in dissolution cases, that concept may also be carried over into the appellate process. Advise your client as to whether they may also be obligated to pay the other party’s legal fees as well as their own for the appeal.
The bottom line is that not every loss is worth appealing, and you should perform a detailed and objective cost-benefit analysis before your client decides to move forward. Outlined above are some of the major issues to discuss with your client when considering taking an appeal of the trial court’s judgment. Of course, additional considerations will likely arise in each case based upon the specific facts. Suffice it to say that both the costs and the benefits of appealing a trial ruling can be significant. However, the key is to prepare the client for what is to come so that they can make a fully-informed decision.
Michele M. Jochner is a partner with Chicago’s Schiller DuCanto & Fleck, LLP, where she handles the firm’s appellate matters. She has authored more than 200 legal articles and has served in leadership positions with a number of bar associations and community organizations. www.sdflaw.com
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