Civil Appeals

If you have been involved in a civil case and the outcome didn’t go your way, then you are likely wondering what your remaining legal options are. Taking an appeal is your strongest option for potentially overturning the outcome of your case. Alternatively, if you have won your civil case, the losing side may have filed its own appeal seeking to change the trial court’s judgment entered in your favor. If you are considering filing an appeal, or if you prevailed in the trial court and the losing side has filed its own appeal, then it is important to consult with an appellate specialist as soon as possible so you can be positioned for the best chance of success.

What is an appeal?

An appeal is a challenge to a trial court’s judgment, heard before a court that has authority to reverse the trial court if necessary. In other words, the losing party can appeal the trial court’s judgment if it believes the trial court made a legal mistake that affected the outcome of the case. But unlike a trial, no new evidence is introduced in an appeal—the appellate court is bound by the evidence presented to the trial court. Appeals operate by a very strict timeline and rules. If you fail to file a timely notice of appeal, then you will likely lose your chance to appeal your case altogether. In addition, if you failed to preserve an evidentiary objection or other legal issue at the trial level, then the appellate court may find you have waived the ability to raise the matter on appeal.

How is an appeal different from a trial?

An appeal takes place before a panel of judges, and no jury is present. Unlike a trial, in which witnesses testify and the parties present evidence to the court,  It primarily consists of briefs submitted by the lawyers. Oral argument sometimes takes place, but it is usually limited to 15 minutes per side.  

What can be appealed in a civil case?

Your main options in filing an appeal are typically to challenge the rulings of the judge on legal issues, provided that trial counsel has properly challenged the ruling at the trial level and preserved it for appeal. An appellate court has the power to affirm, reverse, or vacate a trial court’s ruling on a legal issue. The appellate court may also remand a case back to the trial court for further hearings or a potential retrial. Alternatively, you may challenge the jury verdict on the ground that sufficient evidence existed for judgment to be entered against you, and ask the appellate court to reverse the jury verdict and order the trial court to enter judgment on your favor. Before deciding to file an appeal, you must understand what your appellate issues and what the likelihood of success is on these issues.

Why not just have my trial attorney handle the appeal?

Handling an appeal requires a set of legal skills different from, though complementary to, the legal skills required to handle a trial. The main focus at trial is to develop a fact-based theory of the case in a manner most favorable to the client—a theory with which the jury will sympathize. An appeal, by contrast, involves intense legal research and briefwriting on the purely legal decisions made by the trial court below. Whereas oral argument before a jury at the trial level is typically based on emotion, oral argument on the appellate level is usually based entirely on legal matters and how the lower court may have erred in applying the law. Appellate lawyers have typically spent years perfecting their legal writing and legal research skills, as well as how to conduct oral argument before an appellate court and how it differs from arguing in a trial court.

Are appellate lawyers ever retained to assist at the trial level?

Over the past several decades, it has become more common for trial lawyers to retain appellate specialists at the trial level to assist in handling a variety of procedural matters. Appellate specialists can advise trial lawyers on how to preserve matters for appeal, such as when and how to make objections. Appellate specialists can also assist in the drafting of jury instructions and the research and filing of post-trial, dispositive motions. This frees up the trial lawyers to do what they do best: tell a story to the jury in a manner most favorable to their client through arguments to the jury, the examination of witnesses, and the presentation of non-testimonial evidence.

What is flat fee billing, and how does it differ from hourly billing?

Flat fee billing is an arrangement whereby the client and the attorney agree upon a set, lump-sum, fixed fee for the attorney’s handling of the entire case. It has become increasingly popular on the appellate level, as it provides advantages both to the client and to the appellate attorney. Under hourly billing the client agrees to the attorney’s hourly rate, and the attorney usually presents an estimated budget at the start of the litigation stating how many hours the law firm is likely to spend on the case from start to finish. It is not uncommon for the law firm to go over budget due to unforeseen circumstances, contrary to what the client may have expected. Flat fee billing, by contrast, guarantees that the client will know up front exactly how much it will cost to retain an appellate lawyer. This provides the client with the advantage of knowing the legal fees will never exceed what it agreed to at the start of the case. Flat fee billing is also an advantate to the appellate attorney, as it frees up the attorney to focus primarily on the quality of the appellate brief being drafted, as opposed to the quantity of hours to be billed.

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