The decision to appeal

By Christopher J. Armstrong and Thomas J. Carey Jr.

Dolan Media Newswires

Is there a potential downside to an appeal? Often there is. You may have lost but dodged an even more devastating result.

Do you want to appeal, thereby virtually guaranteeing a cross-appeal that puts the worse outcome back in play? How many times have you read an appellate opinion and asked yourself what possessed the appellant to appeal? Try not to have your name listed as counsel in such cases (though they may be pursued by the client against the advice of counsel).

It is particularly mind-boggling when an institutional litigant with many cases to choose from presses an appeal in a case with bad facts. Strategic litigation strategy demands that test cases be chosen with care to increase the likelihood of a favorable ruling.

On a more mundane level, always warn your client that appeals can take a long time and that interest is running at what can be a very high rate. In a case in which attorneys' fees are available to the prevailing party, if the appeal is unsuccessful, an appellant can end up paying both sides' appellate costs, both sides' appellate attorneys' fees, and a whopping interest rate on the underlying judgment.

Make sure the cost-benefit analysis of an appeal is fully explained to the client.

Complete re-evaluation

Because a reality check is often the most important factor in deciding whether to pursue a case on appeal, a complete re-evaluation of the client's litigation strategy and goals must be done.

As part of that re-assessment, you must impress upon the client that, as with trial litigation, the only thing certain about appellate litigation is the uncertainty of the result.

By the end of trial, clients understand how difficult it is to assess what a jury will do. But there is a perception that the law ought to be more predictable and that the probability of success on appeal can be calculated with mathematical precision.

It doesn't work that way, and the client must be educated that prediction is difficult and guarantees nonexistent. Don't give foolish assurances of success.

Trial counsel or the business client may wish to consult an appellate specialist in evaluating whether an appeal should be taken. Fresh eyes can be helpful in a reality check. And appellate counsel may be in a better position to evaluate how the record will look to an appellate court.

Given the amount of time and effort needed to evaluate an appeal, and the importance of reviewing the entire record, including transcripts, it may be necessary in some cases to file a protective notice of appeal while a final decision is being made.

Another form of success on appeal is settlement, of course, and the pendency of a potentially meritorious appeal may have a salutary effect on the willingness of both parties to seriously consider settlement.

It is possibly the noblest role of the lawyer to encourage angry parties to disengage from battle and to compromise reasonable differences, rather than to dissipate their dwindling assets in seemingly endless litigation.

Court-sponsored settlement conferences, as well as private mediation or arbitration, are available. You will find the busy appellate court only too happy to stay appellate proceedings for the time necessary to undertake mediation or other bona fide attempts to settle.

Meritorious appeals

Be wary of weak appeals. We all take some cases for the challenge they pose, but ideally your success rate in civil cases ought to be better than general averages (which include criminal cases and pro se appeals) because you prune out appeals that should not be taken.

Neither the system nor your reputation will improve, however, unless careful professional judgment is exercised in deciding whether an appeal should be taken. Frivolous appeals add to the burdens and penalize everyone.

The client who insists on pursuing a marginal case must be warned that doing so can result in significant additional damages.

Thoughtful counsel would do well to reflect on the increasingly pointed warnings being sounded by the state appellate courts about the imposition of sanctions for frivolous appeals or appeals suffused with improper argumentation, such as arguments not grounded in the record or filled with ad hominem disparagements of opposing parties or opposing counsel.

The prospect of possible sanctions should be a wake-up call to the bar, as an order to pay the other side's counsel fees would be both costly and humiliating.

So remember, before investing in an appeal, review the new post-trial situation coolly and dispassionately to determine whether your client's case - however meritorious at the trial court level - presents an issue worthy of appellate review and worth the cost of an appeal.

If it does, maintain the same dispassionate, professional mien in briefing and arguing the appeal. In that way, you will best serve the interests of your client and the appellate courts, while enhancing your reputation as a skilled, reliable appellate attorney.

Christopher J. Armstrong was an Appeals Court judge from 1972 to 2008. 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.

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Published: Thu, Oct 14, 2010