Standards for the Provision of Civil Legal Aid

Standard 7.11-7 on Appeals

Previous Standard | Table of Contents | Next Standard

Standard

The practitioner should counsel the client on whether to pursue or defend an appeal and recommend to the provider whether to represent the client on appeal. Timely notice should be given to the client if the provider decides not to provide representation on an appeal. Appellate advocacy that is undertaken should be conducted proficiently and zealously.

Commentary

General considerations

The decision to pursue or defend an appeal from a judgment at trial involves a number of interests and responsibilities. The client needs to make an informed decision whether to seek or defend an appeal. The practitioner has a professional responsibility to counsel the client regarding the advisability of pursuing or defending the appeal. And the provider has the responsibility to decide whether to represent the client on appeal, if the individual wishes to go forward.

The practitioner and provider should make clear to the client at the outset of representation that the client will not automatically be represented on appeal. If the client wishes to pursue or defend an appeal, but the provider decides not to provide representation, the practitioner should give the client timely notification of that decision to assure that the client has adequate opportunity to seek alternative counsel and take other appropriate steps.

Counseling the client on whether to appeal

When a client is faced with an adverse decision or an adversary decides to appeal a favorable decision, the practitioner should counsel the client on whether to pursue or defend the appeal. In most cases, if the client has prevailed and an appeal has been filed by the adversary, it will be in the client’s best interest to defend the appeal. The practitioner may counsel the client, however, regarding the desirability of settling the appeal to expedite the client obtaining needed relief and not having to wait for the appeals process to run its course with a possible negative outcome.

The practitioner should advise the client about the legal and practical implications of appealing an adverse judgment. The practitioner should counsel the client on whether the issues are appealable, the likely outcome on appeal and the length of time the appeal is likely to take. The practitioner should also explain the potential benefits and risks that are entailed, including the risk that an appellate court might reverse findings that were favorable to the client, if the adverse party cross-appeals from a partially favorable judgment. When counseling the client, the practitioner should make sure that the client understands that a separate decision will be made by the provider whether to offer representation.

Practitioner's recommendation on whether to represent the client on appeal

If the client wants to appeal, the practitioner should make a recommendation to the provider on whether to pursue the appeal on the client’s behalf. The practitioner should make a professional judgment about the likelihood of success on appeal, including evaluation of pertinent law to determine whether the client's position can be successfully asserted in a higher court. The practitioner should analyze whether there was a misapplication of accepted law or a good faith basis for extending, modifying or reversing current law, if that is necessary for the appeal to succeed. The practitioner may consider the potential benefit and risk of the outcome of the appeal to low income communities in general from any precedent that could be set.

The practitioner should also estimate the likely costs of an appeal, including personnel costs and out-of-pocket expenses for such things as preparation of transcripts and printed briefs and travel to the appellate court if located at a distance from the provider's office.

Approval by the provider

Because of the potential resources required to pursue an appeal and the potential for establishing precedent, the decision regarding whether to go forward with an appeal should be made by the provider. In making the determination, the provider should look to several factors:

  • The likelihood of success, based on the assessment of the practitioner. No appeal should be undertaken unless there is a good faith belief that the client can prevail.
  • The potential loss to the client. The importance of an issue that may be subject to appeal is in part a function of the significance of the potential loss to the client if the matter is not resolved favorably for the client on appeal. Some cases, for instance, may involve potential permanent loss of custody of a child or access to necessary health care to treat a life threatening illness.
  • The relationship between the issue involved in the appeal and the provider's strategic focus. The provider has a responsibility to make choices about the expenditure of its resources in order to be most responsive to the compelling legal needs of the low income communities it serves. It should, therefore, determine how the issues involved in a potential appeal relate to its strategic focus and if it involves a compelling legal issue that affects the low income communities it serves. The provider should also consider whether an appellate decision in the case is likely to establish a precedent that could be beneficial or detrimental to the low income communities served by the provider.
  • The resources required to handle the matter. Appeals may require a significant commitment of staff resources to research, analyze and argue the case fully. The provider should assure that it has the necessary resources available and should consider the resources necessary to pursue the matter, weighed against the importance of the matter to the client and to the low income communities served by the provider.
  • Availability of other counsel to represent the client. The provider should determine if there are other organizations that may be enlisted to assist with the appeal or to take full responsibility for representing the client on appeal. In some cases, there may be other local, state or national advocacy organizations that specialize in the substantive area in which the matter falls. Sometimes a private law firm may agree to take on an appeal of an important issue as a pro bono matter.

Responsibilities of the provider and outside practitioners. In some cases that are subject to appeal, the client will have been represented at the trial or hearing by an outside attorney who may be a volunteer attorney or may be compensated by the provider. At the outset of the case, the provider and the outside practitioner need to establish who will have responsibility for determining whether the client will be represented on the appeal in the event a possible appeal becomes an issue, whether the provider or the outside practitioner will handle any appeal that is undertaken, and who is responsible for the costs of the appeal. It should also clearly establish whether the provider has authority to assign another practitioner, including a member of its staff, to handle an appeal in a case that was initially referred to the outside practitioner.

In any case, the outside practitioner should immediately notify the provider if a case may be subject to appeal. If an outside practitioner who has assumed full responsibility for a case decides to undertake the appeal on the same basis, then the provider has no additional responsibility except to offer such assistance or support as may be appropriate. If the practitioner declines to represent the client on the appeal, or has a prior agreement to refer cases subject to an appeal back to the provider, the provider should make a prompt determination in conformance with this Standard whether it will undertake the appeal on behalf of the client.

Responsibilities to the client in the event the provider declines representation in an appeal

If the provider declines to represent the client in an appeal that the client wishes to pursue, the client should be notified immediately and in sufficient time to seek other assistance if the individual chooses. If necessary, the practitioner should assist the client in filing a notice of appeal to assure that the right is not lost while the client seeks other counsel. In addition, it may be necessary for the practitioner to take steps to protect the client’s interests in the trial court, such as filing or defending against a motion to stay a judgment pending appeal.

A practitioner who believes there is merit to an appeal that the provider has declined to undertake may seek to refer the client to other sources of assistance, such as a national or state organization dedicated to work in the substantive area involved in the case or to an outside attorney willing to pursue the appeal on a pro bono basis. When necessary, the practitioner should also provide assistance to the attorney handling the appeal in such tasks as file gathering and creation or reconstruction of the record.

Responsibility to meet the standards of appellate practice

Appellate advocacy requires particular and special skills to assure careful research and cogent written and oral argument. Appellate courts subject legal argument to rigorous and probing analysis. Issues may be more thoroughly analyzed on appeal than at trial because of their potential significance to the development of the law. New legal issues may arise regarding the authority and jurisdiction of the appellate court to hear the appeal.

In addition, appellate courts strictly enforce their rules of procedure and practice. Many court rules are jurisdictional, and failure to comply may be fatal to pursuit of the client's claim. The practitioner should be fully aware of all deadlines for filing notices of appeal, docketing papers, motions, briefs, and abstracts and transcripts of the record and should comply with the requirements regarding form and style of briefs and other documents.

Because of the high standards of practice involved in appellate advocacy and because rulings of appellate courts have substantially greater precedential value than trial court decisions, practitioners pursuing appeals should be highly skilled and well versed in the intricacies of appellate practice. Ideally, the provider should assign practitioners to handle appeals who have substantial appellate experience in order to assure that the issues are properly addressed. However, if the provider assigns an appeal to a practitioner who is relatively inexperienced in appellate advocacy, the practitioner should seek assistance from experienced appellate advocates on the provider’s staff, from other legal aid providers, from state, regional and national advocacy centers or from other members of the bar who may volunteer to assist. Appellate practitioners should practice their oral argument and responses to possible questions with other advocates who have appellate court experience, including outside appellate practitioners who may volunteer to assist.