A key part of “Appellate Success” is knowing where a win is likely to leave you, after all the time and cost required to secure it.  This cost-benefit question is most acute for the judgment-loser considering a try at reversal.  (The judgment-winner can, with some exceptions, assume that success on appeal means keeping what the trial court delivered, usually with interest.)  With a reversal on appeal, will the appellant obtain –

  • Remand for a new trial?
  • Remand for a first trial (if the initial loss came on summary judgment)?
  • Remand to litigate the case from the beginning (if the initial loss came on the pleadings)?
  • Relief from an onerous injunction or money judgment?
  • A possible precedent of value to the appellant’s business?
  • A valuable “message” to the opposing party, or to that party’s industry?

Some of these forms of relief would also bring increased settlement leverage. But the key point is that very few appeals can result in final judgment for the appellant from the reviewing court, and even fewer actually will.

  • The practical message:  Appellants and counsel should weigh the value that a successful appeal can possibly deliver against the time and cost necessary to achieve it, in order to define “appellate success” in each case, before deciding to proceed.