• You Lost, Now What? Making the Decision to Appeal
  • May 2, 2018 | Author: Andrew P. Selman
  • Law Firm: Vandeventer Black LLP - Richmond Office
  • Whether expectedly or not, there may come a time when you find yourself on the losing side of a legal battle. Your first reaction might be to consider pursuing an appeal. Below are some points that are helpful to keep in mind as you evaluate your options.

    Think early about the possibility of an appeal: As with most things in life, there is rarely, if ever, a sure thing in a legal dispute. Some decisions made early in the litigation process can affect the success of an appeal later. Planning ahead with your attorney for a possible appeal can save you time, money, and grief down the road. Talk with your attorney about what would be best in your case.

    Make sure the decision is appealable: In most instances, only final judgments or orders can be appealed—that is, a decision that effectively ends the case. So, if you lose some sort of evidentiary motion, for example, you likely cannot appeal that decision until the case is over. There may be some exceptions to this rule, though, so consult with your attorney to see what your options are and whether an exception might apply.

    Confirm that your attorney will handle your appeal: Some attorneys treat appeals as a separate engagement from the underlying case, so pursuing your appeal may require entering into a new engagement or a different fee structure. Some attorneys refuse to handle appeals at all. Review your initial engagement agreement with your attorney to see whether an appeal is covered in the scope of the services your attorney agreed to provide. If the appeal is especially important or complex, you may wish to consult an attorney who specializes in appeals.

    Pay attention to deadlines: It is very important to talk with your attorney about the decision to appeal in a timely manner because there is a time limit in which you must file a notice that you are appealing. In some lower state courts, this period can be as short as ten days; in federal court, you usually have thirty days. Courts take these deadlines very seriously, and missing them can be fatal to your appeal. Consult with your attorney to see how long you have to decide whether you want to pursue an appeal.

    Manage Expectations: The appeals process can be frustrating if you have unrealistic expectations. It can be a long time from the time you initiate your appeal until the time you have a decision, sometimes even longer than it took to litigate the underlying case itself. In addition, keep in mind that cases on appeal are often judged under different standards than in the underlying proceeding: what might have been a compelling argument at trial might be an ineffective argument on appeal, for example. Your attorney can help you know what to expect if you proceed with an appeal so you can avoid unpleasant surprises.