The trial is over. Things did not go as had been hoped, and an adverse judgment has been entered. An appeal is a given, right? Not necessarily. Although in most civil cases, there is an automatic right to an appeal from an adverse judgment or other final order, that does not necessarily mean an appeal is the right choice in every case. Here are some points to consider.
- What is the realistic chance of success on appeal? This analysis should begin with a look at the applicable standard of review. For example, in Missouri evidentiary issues typically receive review only for abuse of the trial court’s discretion, and the trial court will be afforded considerable discretion in such matters. Review of an order granting summary judgment will be de novo, which essentially means the appellate court will look at the case with a fresh set of eyes. These are very different standards, and there are others which may apply to other issues in any given case. Knowing the standard of review to be applied will help in the assessment of chances of success.
- What fees and costs will likely be incurred? Like the amounts for fees and costs incurred in litigating a case through trial, fees and costs on appeal can vary widely depending on the facts of the case and its procedural posture. The preparation of a record on appeal for a case involving multiple days of trial testimony and thousands of pages of documentary evidence is likely to be considerably more expensive than preparation of a record on appeal of an order granting a Motion to Dismiss. Likewise, the complexity and number of issues to be raised in the appellate briefing are likely to affect the overall amount of fees and costs incurred. An appeal bond, if one is required, can be costly if a large verdict must be bonded. Having an estimate of likely fees and costs such as these will assist in making the determination if the appeal is worth the effort given whatever has been determined to be the realistic chance of success on appeal.
- What time and effort will be involved? Appeals can take a long time, even upwards of 9 to 12 months or more, to complete. Post-judgment interest may or may not be accruing. A party’s other interests may or may not be affected by either or both the diversion of time or of money. As with all phases of litigation, these considerations should be weighed in the decision on whether to proceed.
- Is the record on appeal solid? On appeal, the parties are pretty much stuck with the facts as they appear in the record. The time for development of facts or discovery on issues is, for the most part, over. This is both good news and bad news. The bad news is that, once on appeal, if certain evidence was not presented to the trial court, it is generally too late to do so. The good news is that this may also mean a more accurate assessment of the merits of the case can be made. At any rate, whether the trial court record contains all that might be needed for a successful appeal should be considered in an overall assessment of the appeal’s strength.
- Is there some strategic advantage to be gained with an appeal? If an appeal is otherwise justified and non-frivolous, a consideration may be whether or not filing an appeal provides some leverage toward settlement of the case.
For an aggrieved party, an appeal absolutely may be the right choice but should not be entered into blindly. An appellate practitioner, whether or not also involved at the trial court level, can assist in a thoughtful and reasoned evaluation of the case to make an informed decision on whether or not to pursue appellate review.