By Christopher J. Armstrong and Thomas J. Carey, Jr.
The Daily Record Newswire
The lawyer for the losing party in a closely fought civil case in the trial court, flush with the heat of battle and confronted with findings he considers outlandish, is often tempted to reflexively file a notice of appeal.
The rules make filing an appeal easy, and it costs nothing. The client, stunned by the trial’s outcome, is apt to be wholly receptive, sure that another court will see immediately that the findings were preposterous (blissfully unaware that the appellate court will not be concerned in the least about witness credibility).
But the act of filing a notice of appeal sets in motion an appellate timetable, a series of acts that do cost money and time.
Thus, before filing, the lawyer should take a cool, morning-after assessment whether, in light of the findings made in the trial court, there really is any point appealing; that is, whether there really remains any meritorious issue of law that offers a reasonable possibility of undoing the adverse outcome.
It is often hard for a beginner at appellate work to accept that the factual disputes so ardently fought in the trial court, often for days, are made immaterial in the appellate court by the verdict of a jury or the findings of the judge.
But it’s true. Appeals from judgments after trial are normally concerned with the correct application of the law to the facts as found in the trial court. Appellate courts will not review the trial court’s findings of fact except for legal error.
Unless the contention is made on appeal that the jury or judge found a fact not warranted by the evidence (that being itself a question of law), or that the findings were clearly erroneous (a seductive but virtually hopeless appellate quest), the appellate court will simply take as true the facts found by the judge or the jury.
The factual disputes fought over at trial are thus of no consequence in the appellate court. That fight is over. The facts have been found.
The appellate court is concerned with only two questions: whether the proceedings in the trial court were conducted in accordance with the law (including procedural and evidentiary rulings that if erroneous might vitiate the fact findings and compel a new trial), and whether the law was correctly applied to the facts determined.
Reflexively filing a notice of appeal may feel good, but the able advocate will take the time the rules allow (normally 30 days, but counsel will have checked to be sure even before judgment entered) and reassess the client’s case in light of the adverse findings.
Here, the lawyer’s role as teacher is paramount, for it falls to him to explain to the client how the issues in the appellate court will be completely different from what they were in the trial court; to describe what issues are now available; and to evaluate whether there is any real likelihood of success that would justify the cost and time spent in pursuing an appeal.
The lawyer must explain to the client, if need be, that although his case in the trial court was entirely worth pursuing, it would be unlikely to succeed in the appellate court and should not be pursued. It’s a difficult conversation that must be preceded by careful thought.
About 10 years ago, the Appeals Court did a rough survey to determine what percentage of notices of appeal filed in the trial court eventuate in the entry of the appeal in the Appeals Court.
The estimate made by the trial court clerks at that time was about 50 percent.
Undoubtedly, what had taken place in the meantime was the sober, morning-after assessment we describe.
It is also interesting to note that, of those appeals that are entered in the Appeals Court, some 20 percent are dismissed before argument for failure of the appellant to file a brief, or due to voluntary settlement before the appellant’s brief has been filed.
In most of those cases, we can infer that the process of reassessing the client’s prospects has finally occurred. (In fairness to the appellant’s attorney, it is often difficult or impossible to evaluate the client’s prospects on appeal without first incurring the substantial expense of having a transcript prepared.)
These appeals are resolved after the expenditure of some time and money in processing the appeal but before incurring what is usually the most substantial cost: the writing of briefs.
Despite all of this winnowing out of dubious appeals prior to appellate briefing and argument, there remain substantial numbers of appeals in which the appellant’s attorney is straining against the judge’s findings or against the evidence that could have led to a jury’s verdict.
Frequently, the appellate panel finds it necessary to remind the appellant that it is not its role to supplement the trial judge’s findings with findings the judge might have made but didn’t.
Many times we hear appellate judges reminding the appellant’s lawyer that the trier of fact was not required to believe the testimony of the witness or witnesses on whose testimony the lawyer is relying. Such reminders may be even more necessary in the case of a trial attorney trying to handle his own case on appeal, as contrasted with an appellate specialist who ought to approach the appeal with the same clinical detachment as the appellate judges themselves.
In either scenario, however, and with discouraging frequency, appellate judges find themselves having to remind too many appellants’ lawyers of the basic principle of appellate practice that the court’s purview goes only to the trial court’s rulings of law, not its findings of fact.
Many factors enter into the decision to appeal a civil case, and the lawyer and client can find themselves facing a complicated and difficult decision, like a chess master analyzing a dimly perceived end game.
But if the lot of the trial was cast on the facts, and the record has not been seeded with legal error, the end game is a foregone conclusion. Don’t throw good money after bad on a losing appeal.
Christopher J. Armstrong was an Appeals Court judge from 1972 until his retirement in 2008, and was chief justice from 2000 to 2006. He is currently of counsel to Dwyer & Collora in Boston. Thomas J. Carey Jr. teaches appellate advocacy at Boston College Law School and leads the appellate practice group at Dwyer & Collora. The authors can be contacted at (61) 371-1000 or by e-mail at tcarey@dwyercollora.com.
