The Decision to Appeal, Part II
By Christopher J. Armstrong and Thomas J. Carey Jr.
Published: "Appeals Corner," Massachusetts Lawyers Weekly, June 28, 2010
This is the second of a three-part column. Part I appeared in the April 26 issue.
In our last column, we cautioned against reflexively filing a notice of appeal after an adverse final judgment in a civil case.
A case that turned on credibility and facts might have been a good one in the trial court, but if the case turned solely on credibility and facts without any disputed legal issues, it will likely be a hopeless one in the appellate court. And the decision to appeal should not be based solely on an emotional reaction to the fact findings.
What other factors should you and your client consider in deciding whether to appeal? Every case is different and the decision can be complex, but at a minimum the following issues need to be addressed. The first two issues will be discussed in more detail here, and the final three will be the subject of our next column.
- Is it worth taking the appeal?
- What is the probability of success on appeal, and to what extent will a successful appeal actually advance the client's long-term best interests?
- Is there a potential downside to an appeal?
- Because a reality check is often the most important factor in deciding whether to pursue a case on appeal, a complete re-evaluation of the client's litigation strategy and goals must be done.
- Finally, although an appeal is available as a matter of right, the system is struggling under excessive caseloads, and frivolous or merit-less appeals have no place.
Is it worth taking the appeal?
In criminal cases, the liberty interests involved (and court-appointed counsel at little or no cost for indigent clients) may justify an appeal even if it's a long shot.
Some civil cases are similar. Termination of parental rights, custody disputes, eviction from public housing, and "civil" commitment of the mentally ill or sex offenders are examples.
And even though the decision to appeal should not be based solely on emotion, some civil cases are so emotionally charged that reason may play little role in the decision to appeal. Some divorce and probate battles fall into that category.
Law reform cases, bet-the-company litigation and some intellectual property cases may have been destined for appeal from the beginning.
But in many cases, especially business disputes, the case is driven by economic considerations, and a cost-benefit analysis should be done.
Although statistical averages tell us little about the prospects of success in a particular appeal, the prevailing rate of reversal - a meager 20 percent - demonstrates that any appeal is an uphill fight.
The cost of appeal may be significantly less than what has already been expended on the trial, but it can nonetheless be substantial and should be balanced against the possible gain from a successful appeal.
To take an obvious illustration, if the sole issue to be argued on appeal is the proper measure of damages, and the cost of the appeal will be greater than the difference in the damages, why bother? The potential gain is outweighed by the cost, unless you have an institutional client with many similar cases (or you represent many similarly situated clients) so that the value of a definitive resolution of the issue will be multiplied across many cases.
What is the probability of success on appeal, and to what extent will a successful appeal actually advance the client's long-term best interests?
Success on appeal can take many forms. The decision to appeal may well be determined by precisely what kind of relief is realistically available on appeal. Does an appeal offer your client a strong chance of a clean victory or merely a return to square one?
If a substantive legal issue was properly raised and submitted to the jury, such as whether Massachusetts law recognizes the claim for relief or defense, and if so whether the evidence was sufficient to support the verdict, an appellate decision after trial may terminate the litigation once and for all.
On the other hand, if the complaint was dismissed in the trial court, a successful appeal merely returns the plaintiff to square one.
Likewise, many alleged trial errors, if they succeed on appeal, will at best accomplish reversal with on order for a retrial.
If, for example, you have a reasonably good prospect of winning a reversal due to the erroneous admission or exclusion of evidence, the appellate result will be an order for a new trial. A new trial will entail further considerable expense for your client. If the chances of success on a retrial will remain slim to none, what has been gained?
Keep in mind that to succeed on appeal, the appellant must identify error, demonstrate that the error caused prejudice, and show that the claim of error was preserved for appellate review.
An appellate court normally reverses the trial judge only for errors of law, and it is the appellant's burden to make sure the record shows the errors that will require reversal. An erroneous ruling will not be ground for reversal unless the record also shows that the ruling prejudiced the appealing party.
A frequently seen application of this principle is the judge's admission of testimony that was objectionable, but the jury received the same information from other, unobjectionable testimony. Since there was no prejudice, the erroneous ruling will not lead to reversal.
Improprieties at the trial will not avail in the appellate court unless your rights were saved. Rare is the transcript that does not show objectionable testimony being put in evidence without objection, some of it clearly prejudicial to the party who ultimately loses.
In civil cases, the objection that might have been made has been waived; it will not be the basis for reversal on appeal. It is not an error of law to let objectionable testimony come in evidence if there has been no objection, for the judge has not been asked to make a ruling. An objection would have required the judge to make a ruling, and, if the ruling was erroneous, could have been grounds for reversal, if the testimony that should have been excluded was prejudicial.
But in a civil appeal, without the objection, the point is forever waived.
More generally, alleged errors will not be grounds for reversal on appeal unless counsel made plain to the judge that a ruling other than the one the judge made was sought. And ordinarily, the grounds for reversal asserted in the appellate court must have been adequately presented to the trial judge.
Christopher J. Armstrong was an Appeals Court judge from 1972 to 2008. He is currently of counsel to Dwyer & Collora in Boston. Thomas J. Carey Jr. teaches appellate advocacy at Boston College Law School and leads the appellate practice group at Dwyer & Collora.