The Appealing Truths to a Second Bite at the Apple: Why a Civil Appeal Might be Right for You

Posted on November 14, 2018 by Mark O. Morgan

Our civil rules encourage settlement. Settlement prevents the “winner take all” scenario and encourages the efficient use of court resources–trials are time-consuming and expensive. Although avoiding the courtroom altogether may sound appealing (pardon the pun), remember that you do not need a jury verdict to appeal your case. Here are some things to consider in determining whether an appeal might be the right approach.

I. What Can be Appealed?
Under the Rules of Appellate Procedure (“RAP”), a party may appeal from: (1) a final judgment; (2) a decision determining action; (3) an order of public use and necessity; (4) a juvenile court disposition; (5) a termination of all parental rights; (6) an order of incompetency; (7) an order of commitment; (8) an order on motion for new trial or amendment of judgment; (9) an order on motion for arrest of judgment; (10) an order denying motion to vacate order of arrest of a person in a civil case; or (11) a final order after judgment. If the decision would end the case, it is appealable as a matter of right. Every other decision is likely appropriate as a Motion for Discretionary Review under RAP 2.3.

II. Why Appeal?
For all parties involved, the goal should be the same: achieve the client’s primary objective(s), whether it be to achieve finality or to advance a novel approach. An appeal may also provide a strategic advantage. For example, if you lose a dispositive pre-trial motion and the other party believes that there is a good chance it will be reversed on appeal in your favor, they may be more willing to make a valid settlement offer. In such case, the merits of your appeal and the counsel of a good appellate attorney could strengthen your bargaining position to obtain a higher settlement amount. Furthermore, pursuing an appeal of a motion to induce settlement could be far less expensive than taking the matter through full trial (remember that the attorney’s clock is running for the entire trial). Hence, an appeal may be a cost effective strategy to avoid this otherwise costly process.

Nevertheless, appeals can be expensive if they do not precipitate a settlement. Therefore, it would be prudent to perform a cost/benefit analysis with an attorney for perspective. Furthermore, the fees associated with an appeal can be significantly different from those you incur during trial. For example, an appellate attorney will spend billable time reviewing the record, studying case law, and drafting the appellate brief(s). However, the expertise and skill required to understand the relevant case law, statutes, and tendencies of the court can be a very worthwhile investment should you ultimately prevail.

III. How Should I Approach the Next Steps?
Work closely with your appellate attorney to make sure you are properly evaluating your particular situation. Under RAP 2.5(a), an appellate court will not review any claim of error raised for the first time on appeal, other than in three narrow exceptions. For example, if your trial attorney did not properly object to hearsay testimony or did not make salient arguments in motions to the trial court, you may be precluded from raising such issues on appeal.

Also, keep in mind that appellate counsel will approach your case differently than your trial lawyer. There may be an issue minimized by your trial lawyer that your appellate attorney will recognize as a valuable aspect to your case. Likewise, an issue that was key or pivotal for trial may not be as important on appeal. Furthermore, your appeal is not a second chance to prove your case – the appellate court’s factual universe is limited to the record established at the lower court – but is solely focused on the legal aspects of the case.

IV. Is a Second Bite at the Apple Right For You?
Appellate law requires a very specific type of attorney. What will distinguish your appellate attorney from others will be their ability to: (i) understand the record on review, (ii) find other favorable cases with similar facts, and (iii) convince the appellate court that your case should reach a similar conclusion. If you think you may have an appealable issue and have questions about what next steps to take, it is important to consult with a competent appellate attorney to determine if your case is worth appealing.

Please contact Mark Morgan at Lasher Holzapfel Sperry & Ebberson PLLC to set up a consultation to discuss your specific situation.