6 More reasons Not to Appeal

 Continued from last post

5. There is an attorney’s fee provision in the contract or statute.

Attorney’s fees can be a major expense in a lawsuit. When an attorney first tells a client that the prevailing party can win attorney’s fees, it is just an abstract concept. In my experience, the clients don’t seem to pay much attention to it, first because they believe they will win and they will get the fees. Since no amount has been awarded, the client cannot envision how high fees can go. While there may be a limit, attorney’s fees can be very high and represent more than the actual award.

The same can be said for costs. The costs of litigation are very high these days. That is one reason clients will opt for mediation and settlement. Every case now seems to require one or more experts. The charges can be astronomical and most clients are unable to pay for all of the costs. The loss of a case with high costs could and has bankrupted attorneys. Attorneys have to be careful in selecting cases where they are required to advance costs.

When a client comes to me with a case involving an attorney’s fees provision, I tell them that if they lose, they may end up paying the other side’s attorney’s fees on top of mine. If they take my fees and double them, even adding in 10-20%, then that is what the appeal may potentially cost. If they are not in a position to take that risk, especially given the odds against them, they should stop the appeal.

6. The record is not adequate to show judicial error.

The appellant has the burden of showing judicial error on an adequate record. (Iliff v. Dustrud (2003) 107 Cal.App.4th 1201, 1209.) If the record doesn’t show the error, stop right now. If you have a substantial evidence challenge, but no record of the trial court proceedings, you are probably done. You may consider a settled statement, but it is generally doubtful you can file a statement that would support a substantial evidence test. The settled statement is an inferior replacement for a full reporter’s transcripts. You have the burden of showing judicial error. If you cannot, then your appeal is a waste of time.

7. The error is harmless, not prejudicial.

Plenty of mistakes can occur during a trial. After all, attorneys are human and so is the judge, who must make snap decisions from the bench. Can you imagine how long a trial would be if the judge had to call a recess to research every objection or point of law?  To rise to the level of a meritorious appeal, you must have two things: judicial error and prejudice. If the error does not affect the party’s substantial rights and will not change the ultimate outcome of the case, then an appeal is a waste of time. (C.C.P. § 475; California Constitution, article VI, section 13.)

8. The client does not have the emotional stamina to appeal.

Litigation is an endurance sport that requires plenty of stamina. Some clients cannot escape the cloud of litigation. I have had clients come in with transcripts that have hundreds of post-it notes and multi-colored tabs. I have had married clients who spent a lot of time fighting over the litigation: one wanted to call it quits, the other wanted to fight until the end of time. Litigation can cause the break-up of a marriage or irretrievably damage relationships. I have even advised some clients to seek counseling during the appellate phase because they need to prepare themselves for some sort of closure in the event they don’t receive a favorable result.

9. The judgment is not automatically stayed and the client cannot afford a bond.

Pursuant to Code of Civil Procedure section 917.1, money judgments are not automatically stayed on appeal and require a bond or undertaking to stay enforcement of the judgment. (See C.C.P. §§ 916-923 for circumstances where a stay is automatic.) The failure to obtain a bond to stay enforcement of a judgment can be enough to end even a good appeal. What have you gained if the respondent obtains the full amount of the judgment and then spends it before the case is reversed? Typically, the amount of the bond or undertaking must be 1-1/2 times the judgment. (C.C.P. § 917.1(b).) If no bond is posted, the judgment creditor can enforce the judgment, dragging the judgment debtor back to court for collection proceedings. Some clients may file a bankruptcy petition to obtain a stay, but this can complicate the case as well.

10. The client cannot afford a retrial.

Quite often, the best I can do for a client is to obtain a new trial.  If the client paid for costs plus an hourly rate, then he or she should expect to pay almost the same costs again and perhaps almost the same in attorney’s fees. The first trial may have wiped out the client, who was hoping for a big win at the end, and then has to face the possibility of a second trial. I explain to my clients that a judgment or order may close the door to trial. My job may be limited to opening the door and getting the client back into the courtroom. Unless the issue can be dealt with by the appellate court, I am not saving my clients money by appealing; I am simply giving them another chance at trial.  

Of course, there may be more reasons not to appeal, but these are the ten most common reasons. Share these with your client and fully explore these reasons before deciding to go ahead with the appeal.