If you are on this webpage, you may have won or lost a case at the trial level, and you want to appeal or the other party has filed an appeal. Either way, you need to know if you should file an appeal, or defend against the other party’s appeal. We handle civil and administrative appeals, in both state and federal court, and before administrative agencies. Most of the appeals we handle originate in Florida, but we are also admitted in Georgia, and we pursue appeals to the Eleventh Circuit and U.S. Supreme Court. In high stakes cases, we will handle appeals in courts in other states that we can move to be specially admitted to for purposes of pursuing the appeal. We do not handle criminal appeals, except for actual innocence cases, so our guidance on whether you should appeal is intended to primarily apply to appeals in the civil and administrative context. As you consider whether to appeal, please keep in mind that timelines for filing an appeal are often short, often 30 days or less, and delay can lose an otherwise winnable appeal. Below are important factors to consider when evaluating whether to file or defend an appeal.
Did the Trial Court or Administrative Tribunal Make a Significant Legal Error ?
Without a identifying a significant legal error made at the trial level, and “significant” means an error that probably changed the outcome of the case, it is unlikely that there is a good ground for appeal. If you had a good attorney at the trial level, or if you were the trial attorney (we often co-counsel with trial attorneys on appeal), but especially if you did not have an attorney below, it can help to have a fresh set of eyes evaluate the case and applicable law to determine if there is a good faith basis for pursuing or defending an appeal. Participants in the trial process are often too vested and too close to the case to effectively evaluate the merits of the appeal. You want experienced Appellate counsel that will review your case and honestly share with you its legal strengths and weaknesses. Each case is unique, so a review to determine if you have a good ground to appeal has to be a thorough review, considering the entire record and all potential legal arguments.
Was the Error Preserved in the Trial Record for Appeal ?
To prevail on appeal, an error at the trial level usually has to be preserved in the trial record to be able to be raised on appeal. This usually means that, at a minimum, the error was pointed out to the judge at the trial level, either by way of appropriate objection, argument, or a court filing, and often that a ruling was obtained, and the record has been preserved to demonstrate that the error was raised below. In most cases you will need a transcript of the proceeding to demonstrate the error was preserved, but there are a few exceptions. There are also a few errors that are so fundamental that they can be raised for the first time on appeal, but these are very rare, such as a lack of jurisdiction. If in doubt, make sure the error is preserved. We can help ensure the needed legal arguments are raised at the trial court to preserve your rights to appeal. It is unfortunate, but we have individuals and businesses contact us about potential cases (sometime high dollar cases) where legal errors were certainly made but there is no appeal because the error was not preserved below.
Is Your Case Worth Appealing ?
Assuming that the legal error was preserved at the trial for purposes of appeal, you may have a good faith basis for appeal, but that does not end the inquiry. Now you have to value what is at risk if you do or don’t appeal. Is there significant money at stake, is your livelihood or business license or professional reputation at risk? Are other important non monetary things at risk, such a your freedom or family? Does this case set a bad precedent that hurts you or your business in other cases? Even if the amount as risk is not large, it may make sense to appeal if you have a good case and are likely to be able to shift appellate fees to the losing party by way of a contractual or statutory provision.
The value of your case needs to be balanced against both the cost of pursuing an appeal and your likelihood of success on the appeal. The cost of the appeal is not just the cost of the record and your appellate attorney fees, but you will have to consider your exposure to the other party on appeal. Will they be able to recover costs and fees from you if you lose the appeal. Some appeals are bet the farm cases, so important that what you have lost at trial, or stand to lose on appeal is so great that you think it is worth pursuing an appeal even if your odds of winning are low. Other appeals, particularly if fees cannot be shifted, will end up costing you as much to pursue as you will recover even if you win the appeal.
Part of counting the cost is also determining how you are going to pay for the appeal: will your counsel take the appeal on a contingent or partially contingent basis, or based upon the ability to shift fees under a fee shifting statute if you win, or will you have to pay the full cost upfront, with you being reimbursed only if you win and are able to recover fee? Sometimes our firm takes appeals mostly contingent on shifting and recovering fees, but many cases do not allow fees to be shifted.
Do I Defend or Settle an Appeal ?
Most of the above discussion is written as though you are pursuing an appeal, but every appeal has an Appellee, as well as an Appellant, and these same factors need to be considered when defending an appeal. An Appellee also needs to consider whether it makes sense to settle a case on appeal, instead of defending. Sometimes trial wins are not defensible, and settling is wiser than losing the cost of an appeal plus the cost of an appellate reversal. You will need a thorough evaluation of the strengths and weaknesses of your case, to inform this decision.
Each case is unique, but having an experienced Appellate Attorney review the record and determine if you have good grounds for appeal is the best way to start your analysis. And, you want the analysis to be candid, it depends on the appellate court and the subject matter, but most non criminal appeals that are filed across the country have a 10-15% chance of reversal. You do not want an advocate that will just take any appeal if they are getting paid- you want someone that will determine if it is likely that your case that fits within the 10-15% reversal category.