Appellate Advocacy means taking a dispute that was resolved in a trial court to a higher court (an appellate court) to get the outcome changed. Our appellate advocacy services include both representing the appellant (the person who was not happy with the result in the trial court and wants to get it changed) in some cases and representing the appellee (the person who liked the result in the trial court and is defending it on appeal against the appellant's attack on the trial court judgment) in others. Spoiler alert: the appellee usually wins. But not always. Whether an appeal will succeed depends on whether there was a mistake made at trial (more about that later) and the skill of the lawyers arguing the appeal.
You lost at trial. What now?
In the mid-nineteenth century, William Edward Hickson popularized the proverb, "If at first you don't succeed, try, try, try again." That phrase takes on new meaning in the litigation context. After losing a trial, a natural question many litigants ask is, "Can I get a do-over?" In the case of a civil jury trial, the first step in asking for a do-over is usually to file a motion for Judgment Notwithstanding a Verdict (JNOV). That means that the losing party says to the judge that the jury got the wrong outcome and asks the judge to change the outcome without a new trial. In cases where that motion is rejected -- or where the original trial was before a judge only, not a jury -- a losing party can ask for a new trial. If there has been an error that the trial judge wants to correct, it is possible that one of these motions will be granted, but most of the time they are denied. That leaves the losing litigant in the position that comedian Rodney Dangerfield (in the old joke) found himself in when his doctor told him that he had just one month to live: He said, "I want a second opinion." (In the joke, the doctor replies, "Okay, you're ugly, too.") But to get a second opinion after losing a trial, you need to appeal. That's where we come in.
Grounds for Appeal
First, you need a basis for your appeal. You can't just ask a higher court to reverse an adverse judgment just because you don't like it. There are a number of possible bases for an appeal. For example, if the trial judge made a mistake of law or that there were no facts in the record to support the judge's findings or the jury's verdict, that could be a grounds for appeal. Sometimes excluded evidence (that should have been allowed) or faulty jury instructions serve as the basis for an appeal. Lawyers are prohibited from bringing civil appeals without solid grounds (as opposed to criminal convictions, which can always be appealed).
How do you spell Relief?
Assuming you have grounds to appeal, you need to figure out what relief you are seeking. If you were the defendant and the plaintiff won a monetary judgment against you, you might ask for the amount of the judgment to be reduced or the entire judgment to be vacated or for a new trial on damages or on liability or both. If you were the plaintiff and you lost at trial, you might seek a new trial. The relief you are entitled to depends on your grounds for appeal and your posture in the case. So sit up straight. No, not that posture -- whether you are a plaintiff or a defendant. To further complicate matters, you might be both a plaintiff and a defendant and you might have won some of the issues at trial and lost others. In these cases, both sides sometimes appeal the issues they lost. This is known as cross-appeals.
The Price is Right (sometimes)
After a long and tiring and expensive trial, the last thing you probably want is another trial. The good news is that an appeal is usually a much shorter and simpler process that a trial. First of all, the appeal is based on specific, limited issues that were handled incorrectly at trial. Also, appeals are based on the trial record, so there is no need for testimony and evidence and experts and most of what makes trials so time-consuming and expensive. Assuming there are appealable errors of law and the stakes are high enough, filing an appeal is often worth the cost. Both sides lawyers file briefs (written arguments to the judge or judges -- usually there is a panel of three or more appellate judges) and sometimes there is an oral argument (lawyer for both sides make arguments and answer questions in a hearing before the judges). Generally an appeal costs a small fraction of what the trial cost. But there can be a downside. If there is a monetary judgment against you, interest is accruing while your appeal is pending (the Massachusetts statutory rate of interest for contract claims is 12%, so interest can pile up fast). So you do need to think carefully, before filing an appeal. On the other hand, if you won at trial and the other side appeals, it almost always makes sense to defend the judgment vigorously. After winning a hard-fought victory at trial, it would be a shame to throw it away.
Winning Isn't Everything
Even if you win your appeal, you don't necessarily get the trial outcome overturned. Sometimes a new trial is ordered and both sides have to re-try the case. But at this point, both sides might be tired of litigation and probably know a lot about the strengths and weaknesses of their cases that settlement is likely rather than going through another trial.
You Can Sometimes Get What You Want
Now for the good news: filing a strong appeal can often serve as an impetus for a negotiated settlement. For example, we recently handled a divorce appeal for a client who had gotten only about a quarter of the marital estate at trial. Our initial appellate filings showed the appellee (her ex-husband and his lawyers) that we had a very strong basis for appeal. As a result, they came to us seeking settlement. We worked out a fair settlement that got our client about a quarter million dollars more of the marital estate than she had been allocated at trial. Now she can stay in her home with the mortgage fully paid off. So for her, filing an appeal was a very wise move indeed.
We Don't Know, Either (At Least, Not Yet)
Sometimes people call us up after they lose at trial and ask if they have a good chance of winning on appeal. This is a question that we can't answer without reviewing the trial record. But once we dive into the details, we are very good at identifying appealable issues. We don't charge for an initial consultation, so if you are not satisfied with your result at trial, there is no downside to calling us up and discussing your case and the possibility of an appeal. Give us a call at (617) 841-2418. After all, if at first you don't succeed. . .