Mediating an Appellate Case - Part I

I recently settled an appeal and thought I might write a few words about mediating appellate cases.  

One major difference between an appellate case and one at the superior court level is that before you take a case to trial, there are no official winners or losers.  Now you, the trial attorney, might feel that you have a rock-solid case and can't lose, but if you have been around long enough and tried enough cases, you know that s***t happens that can't be predicted.  To me, that means that there is a uncertainty in almost every trial.  So, you are taking a risk - could be small or big - but I think you have to factor that in.

Before the trial, the case does not have a set value, but once the jury presents its verdict or the court enters judgment, a third party or parties has assigned a value to the case.  That value often becomes the value of the case, at least in the winner's mind, and that is one reason it can be difficult to settle such cases.  Quite often, the winner views the judgment as "his or her" money and a sense of entitlement attaches to that figure.

Once the case is decided at the superior court level, there is now a winner and a loser.  That doesn't mean that the winner is satisfied with the win or the loser doesn't feel that victory is just around the corner.  Post-trial motions may be filed, and if they confirm the judgment, the winner's position becomes even more entrenched.

So, it may be difficult, but not impossible, to mediate an appellate case.    There are other factors that must be considered beyond the merits of an appeal.  In my opinion, every appeal involves a economic factors that impact the appeal.  This is what I call the "financial decision" on whether to appeal.