10 Good Reasons Not to Appeal

After a trial is over, you can count on at least one dissatisfied party. At times, there may be even more. The plaintiff may believe he or she was not awarded enough money. The defendant may believe the jury did not understand the defense. I have heard both parties proclaim, “I am not done yet, I am taking this all the way to the Supreme Court!”

Those unhappy litigants don’t understand the appellate process of the function of the appellate courts. Mistakes are often made during a trial. Some will have no significant impact on the results, while others might be prejudicial mistakes that changed the outcome of the trial. After the jury renders its verdict, each party and attorney will be busy dissecting the case to determine if an appeal should be brought.

As an appellate attorney, I welcome an appeal. That’s how I get paid. I don’t get paid to tell people not to appeal. That is one reason that potential clients believe me when I tell them an appeal is ill-advised. Why would I deprive myself of an income by giving out such silly advice? The truth is that for every case I take, I have to tell three other potential clients not to appeal.  

There are times when making an appeal doesn’t make sense. As I often tell my clients, there are two distinct aspects to an appeal. One aspect is to determine if there are meritorious grounds for the appeal.  If there aren’t, then ethical rules prohibit me from handling the case. The other aspect of an appeal is what I call the “financial” decision.  

Let me list ten reasons why I might advise a client not to appeal:

1. There are no meritorious grounds for an appeal.

Let’s say the plaintiff has obtained a judgment against the defendant. The defendant may be unhappy with the verdict, but there are no real judicial errors to challenge or prejudice to the defendant. The jury just didn’t buy the defendant’s version of events. The defendant may want to appeal just to gain some leverage in future negotiations or to delay payment.

Two problems: ethically I can’t file appeal on that basis. Nor can I file an appeal for the plaintiff simply to give him or her leverage to settle a case. The second problem is that pursuing an appeal for the wrong reasons – harassment, improper delay, bad faith, etc. – can open the door to sanctions against both the lawyer and the appellant.

Appellants and their attorneys may be subject to sanctions for pursuing an appeal that is “frivolous” or “taken solely for delay.”  (C.C.P. § 907; C.R.C. rule 8.276(a)(1).) While a client may be sanctioned for pursuing an appeal to harass the other party or delay the effect of the judgment, the attorney faces an additional ground: that the appeal has no merit, meaning any reasonable attorney would agree the appeal is totally and completely without merit. (Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) I am not interested in risking my license to file an improper appeal. In addition, my retainer agreement provides that I can withdraw if I discover the appeal has no merit or it is being pursued for an improper purpose.

1. The appeal is based on lack of substantial evidence.

There are three major standards of review for appeals: legal error, abuse of discretion, and substantial evidence. An appeal could involve a combination of these standards.  

Beware of the appeal that is limited to substantial evidence. It is the hardest type of appeal to win. Appellants appealing on this ground face “a daunting burden.” (Whitely v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 678.)

Appellants can recite all of the evidence in their favor, quickly dismissing or ignoring respondent’s evidence. I always point out that an appeal is not a retrial; the Court of Appeal is looking for judicial error.  The appellate court is bound by the trial court’s resolution of disputed factual issues and must affirm the judgment so long as the judgment is supported by “substantial evidence.” (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) The appellate court will not reweigh the evidence or re-examine disputed facts. It also does not concern itself with credibility determinations, leaving that to the superior court.  

The term “substantial” evidence is really a misnomer. The court is looking for some reasonable evidence. “Substantial evidence” must be “‘of ponderable legal significance . . . reasonable in nature, credible, and of solid value . . . ‘Obviously, the word cannot be deemed synonymous with ‘any evidence.’” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873.) In considering this type of appeal, the appellate court will look at the entire record, not just the facts that favor the appellant. More often than not, those facts are in the record.

(to be continued)