Deciding Whether to Recommend an Appeal After an Unfavorable Verdict: Avoiding Blind Spots and Other Pitfalls

The best time for litigators to think about a possible appeal is when they accept the case. In the right circumstances, including appellate counsel on the trial team will prove invaluable. If an unfavorable verdict is delivered, the client will often turn first to trial counsel for advice on whether to appeal, and this is a recommendation that requires careful consideration.

As a threshold matter, lawyers evaluating whether to appeal a judgment must understand the mechanics of appeals in the applicable federal or state court system. Turning to outside appellate counsel may be called for. The attorney considering appeal must realistically evaluate both their own and their client's interests in appealing and get ruthlessly honest about blind spots and emotional motives. Then the hard work of evaluating the right course can begin, starting with the potential merits and taking into account jurisdiction, preservation of error, standards of review, and the relief available. Clients must fully appreciate the continued publicity and the stress of ongoing and slow litigation.

One of the hardest parts of evaluating appeals is predicting the likelihood of success and the cost of achieving it. That must be balanced against the benefit to be achieved against the possibility that the judgment will be affirmed. Fee-shifting statutes and the availability of attorneys' fees in the underlying case have to be considered. Economic formulas and data about the number of cases that are reversed on appeal can inform the decision. The winning party will also want to evaluate the risks and cost of appeal and may wish to make some type of offer to achieve finality.

Listen as our panel of litigators and appellate lawyers offers guidance for analyzing whether to recommend appealing an adverse final judgment, including practical tips for estimating and evaluating the economics and net benefit of an appeal.

I. Overview of appellate mechanics

II. Evaluating emotional and other reasons motivating appeal

A. Deciding when to involve outside appellate counsel

III. Evaluating the merits of the appeal

A. Jurisdiction

B. Error preservation

C. Standard of review

D. Legal merits or equitable merits

1. Jury charges
2. Trial court's evidentiary rulings
3. Reviewing the sufficiency of the evidence
4. Opening statements and closing arguments
5. Trial court's docket management rulings
6. Pre-trial errors
7. Other issues

E. Type of relief available

IV. Calculating the costs

A. Out-of-pocket costs

B. Attorneys' fees

C. Frivolous appeals

D. Non-monetary pros and cons

V. Comparing the costs and potential benefits

A. Economic formulas

B. Estimating the likelihood of success

VI. Options for the winning party

The panel will review these and other important issues:

• What facts can attorneys use to estimate the likelihood of success on appeal?
• Is there a set of questions that can assist counsel in uncovering unhealthy or insufficient reasons for appealing?
• How does the analysis change when the client is the respondent, i.e., the winning party?