A. What An Appeal Can – And Can’t – Do. An appeal is a powerful, often underestimated, line of defense. It’s an opportunity to reduce the award, obtain a complete or partial new trial, or perhaps even reverse misfortune, getting judgment awarded in favor of the party who lost at trial.

However, the appeal is not an opportunity to retry the case. Appellate courts don’t reweigh evidence, fact findings or witness credibility. They look for prejudicial legal error – error that deprived the losing party of a fair trial. With some exceptions, issues and arguments not raised or waived in the trial court usually will not be available to attack a verdict on appeal.

B. Potential Arguments. The appeal may challenge the judgment in a variety of ways, depending on the case, e.g.:

  • attacking the verdict’s legal underpinnings – arguing lack of standing, no tort as a matter of law, etc.
  • contending there is insufficient evidence to support the legal basis of liability or, e.g., a punitive damage verdict
  • challenging the amount of compensatory or or punitive damages as excessive under state or federal law
  • contesting how the case was tried, including evidentiary or instructional errors
  • other error, such attorney or jury misconduct, juror bias, and the like

C. Possible Outcomes On Appeal. The type of appellate argument raised controls the potential result. For example:

  • if appellant proves there is no contract liability in a tortious breach of contract case, the appellate court likely will reverse with directions to enter judgment in defendant’s favor
  • if the court of appeal finds there is no tort as a matter of law in an insurance bad faith case, it should allow the judgment for contract damages (policy benefits) to stand, but reverse the tort and punitive awards with directions
  • if the opinion decides prejudicial errors were committed in the taking of evidence or jury instructions, it may order a complete retrial, or a partial one, depending on the type of error and when during the trial it occurred
  • the court may outright reduce or eliminate the damage award on its own, or remand to the trial court for further determinations

D. Strategic Considerations On Appeal.

Obtaining a new trial. This can be a mixed blessing. Certainly things go back to square one, but the defendant again faces the risk of an adverse judgment, perhaps even a larger one.

Could there be a a published opinion? Defendants contemplating appeal should also consider the possibility of a published appellate court opinion. Could this help, or harm, its position in other cases? Though unpublished decisions have no value as precedent in many jurisdictions, other courts could treat them as having binding collateral estoppel or res judicata effect. An unfavorable published – or even unpublished – opinion may alert other potential plaintiffs and spur them into legal action.

Economic costs.

  • Preparing the record on appeal. The appellant must pay for preparing the Reporter’s Transcript of the trial and the appendix of trial court documents. In lengthy trials, this can be significant. If the appellant wins on appeal, these costs may be recoverable.
  • Interest runs on the judgment. In many states interest runs on a money judgment at a fixed rate (e.g., California 10% simple interest.) Interest in federal court is calculated under a complex formula geared to the auction price of Treasury Bills at the time the verdict was rendered. Depending on the court and size of the case, an appeal can take months, or years.
  • Costs on appeal. In most courts, the prevailing party on appeal is entitled to appellate costs.

E. Why An Appellate Specialist?

The defense lawyer, who’s lived the case, is intimately familiar with every detail. That very strength can be a weakness on appeal. The reviewing court, seeing the case for the first time, lacks this microscopic mastery of the details, and considers only matters in the record and preserved (or not waived) below.

An appellate specialist brings not only expertise in the procedural complexities of post-trial and appellate practice, but objectivity to evaluating whether to appeal, what issues to raise and how to frame them. They speak the court of appeal’s language, a language very different from the lower court. One looks for legal error and significant legal issues. The other applies the law to resolve disputed fact questions. A seasoned appellate practitioner knows the difference, the court’s history, background and predelictions. They are specially trained in legal analysis. Persuasive, cogent, organized writing is their metier.

“[T]rial attorneys who prosecute their own appeals . . . may have `tunnel vision.’ Having tried the case themselves, they have become convinced of the merits of the claim. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.” Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-1450.

Experienced, savvy appellate counsel are valuable not only on appeal, but during, and even before, trial or judgment. Their creative legal thinking may help to identify new issues or new approaches to old ones, draft dispositive motions, review and edit trial briefs, provide creative ideas about new jury instructions, and help preserve the record for appeal.