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Published: 2008-03-26

Appeal in Error: Common Mistakes Made in Appeals



After a trial, the losing party often has too much at stake, emotionally or financially, to let the verdict stand unchallenged. Appeal is the next option, but many litigants do not fully understand how different an appeal is from a trial. They may also underestimate the differences between trial lawyers and appellate lawyers. These differences may be overlooked when inexperienced litigants launch an appeal. The following is a discussion of common mistakes that such litigants regularly make.

Selecting the Wrong Counsel

Many litigants presume that their original trial counsel knows the case best and is competent to handle an appeal. Thus, they automatically let trial counsel pursue the appeal. But the fact is that trials and appeals require lawyers with different skills. A good trial lawyer relies on charisma and oral advocacy to persuade a jury of laypersons to accept the lawyer's view of the facts. A good appellate lawyer persuades an audience of judges and relies almost exclusively on written arguments that emphasize detailed analysis of the applicable law and the trial testimony. Hiring appellate counsel brings the right skills to the case, along with the fresh perspective of a lawyer who is not emotionally tied to the case.

Mistiming the Selection

Appellate counsel should be hired early, even before a case goes to trial. An appellate attorney who is hired early can prepare trial briefs and motions, preserve error, draft the proposed jury questions, and object to any erroneous jury questions that are given. Waiting to hire appellate counsel until it is time to file the appeal can deprive the litigant of valuable guidance and help. Even worse, it can result in waiver of error that trial counsel did not spot. At a minimum, appellate counsel should be hired right after trial – not on the eve of the deadline to appeal.

Misanalyzing the Appeal

Emotionally charged litigants usually have one focus, curing the "injustice" of losing the case. It is easy to forget, however, that parties are entitled only to a fair trial, not a perfect one. A good appellate lawyer recognizes that appellate review is structured and constrained, resting on four "pillars of affirmance" that can tip the appellate scales against a reversal:

  • Preservation of error (the trial judge should not be reversed unless he or she was given a chance to correct the alleged error)

  • Standard of review (the appellate court generally defers to the lower court and the jury, especially on fact issues)

  • The "harmless error" rule (the principle that not every error warrants a reversal)

  • Stare decisis (the principle that precedent should govern)

These pillars were created to avoid hasty or unwarranted reversals and, thus, are intended to be formidable. An emotionally charged appeal has little chance of moving them.

Overestimating the Odds

Because the "pillars of affirmance" make appeals difficult, appellants moved primarily by emotion often overestimate their chances of success. Nationwide reversal rates generally do not exceed 25%, and often are much lower. The chances of getting a reversal from the U.S. Supreme Court are especially miniscule. A successful appeal often starts as a struggle against long odds.

Underestimating the Costs

Appeals naturally involve costs, such as interest on the judgment, the cost of the trial transcript, and the premium for a supersedeas bond (which suspends enforcement of the judgment pending the appeal). The largest expense is the fee for appellate counsel to read the record, research the law, analyze the case, and write the brief. A party intent on winning an appeal should be realistic about this cost. High-stakes appeals are not the place to hire an inexperienced lawyer or the lowest bidder.

Overlooking the Hazards

Sometimes an appeal can make things worse. For example, a losing appeal might create a precedent that costs the appellant more in the long run. Moreover, an appellate win can be costly if a new trial ultimately results in a larger verdict. Thus, an appellate litigant must fully weigh the short-term and long-term risks, as well as the possible consequences of winning or losing.

Shunning ADR

Seeking ways to reduce their overburdened dockets, many appellate courts have implemented voluntary or mandatory alternative dispute resolution (ADR) programs, using outside mediators or court personnel. Often, ADR is a wasted effort because the parties' positions have hardened after trial, making settlement impossible. But settlements occur often enough to make ADR a viable option that parties should not ignore.

Misframing the Issues

Curiously, many lawyers do not really consider what the case is about before sitting down to draft a brief. This can lead to a variety of errors, any of which can lead to a failed appeal: framing the wrong issues, framing the right issues weakly, failing to frame any issues at all, failing to emphasize the right issue, or raising too many issues. Most successful appeals have only a few good issues. Properly framing and presenting those issues is often the key to success.

Neutering the Brief

Even an appellate brief that focuses on the correct issue can squander its advantage through technical failings that weaken the argument. Such technical problems include poor organization, overuse of footnotes and citations, and complexity and repetitiveness that make the brief dull and overly long. Some briefwriters unsuccessfully try to combat these problems by making the opposite mistake of being overly colorful, superficial, or argumentative. The best briefs are credible, direct, and succinct.

Overemphasizing Oral Argument

Litigants are disappointed to learn that oral argument to the appellate court is often anticlimactic because the real persuasion usually occurs in the brief. Also, when trial counsel handles the appeal, he or she often attempts a rousing oral argument to sway the appellate court. But over-the-top oral arguments fail to move most appellate courts. They usually resent being treated like a jury.

Conclusion

Most litigants – indeed, most trial lawyers – have little experience in the appellate courts. Thus, a litigant who is thrust into the necessity of appealing a case, or defending against an appeal, is well advised to retain experienced appellate specialist. Following this advice should help avoid the common mistakes that can send an appeal down the wrong path in the appellate maze.

Scott P. Stolley is a partner in the Appellate Practice Group of the law firm of Thompson & Knight LLP. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization. Scott can be contacted at scott.stolley@tklaw.com.