August 23, 2016 Articles

The Art of Evaluating an Appeal: 10 Hard-Learned Tips

An appellate practitioner with over 50 years of experience provides tips on evaluating whether to pursue an appeal.

By Sylvia H. Walbolt – August 23, 2016

Your client lost at trial and boy is it mad about that. So, your directions are to file an immediate appeal and get it fixed. Of course, you need to advise the client of any posttrial hoops that must be jumped through for preservation purposes before filing that appeal. Hopefully the issues were set up well at the trial level and the case was tried with an eye toward a potential appeal. But, good appellate counsel always should take a step back and provide the client with an objective evaluation of whether an appeal truly is a wise course of action.

An appellate lawyer naturally wants to pursue the appeal and try to get a reversal. And the fact is, appeals often are successful and achieve meaningful relief from adverse trial results, especially if the appellant is careful in its selection of the issues for appeal. Many good articles have been written about effective appellate advocacy, and following such advice will strengthen the odds of winning on appeal.

But that is not this article. This article is limited to one discrete proposition: not every adverse trial result should be the subject of an appeal. This article hopefully will provide practical guidance on evaluating whether an appeal should be pursued.

The initial and most important step to that determination is an evaluation of the substantive merits of the arguments that could be advanced on appeal. Those arguments may be so strong that this evaluation alone answers the question whether to appeal.

There usually are, however, additional, strategic considerations that all too often are ignored in the heat of the initial dismay over the trial result. Although there always are cases where there can be no question about the absolute need to appeal, some appeals unfortunately are simply a waste of the client’s time and money.

Here are 10 tips on how to determine when to make the tough recommendation that the client cut its losses and run, rather than appeal. Much of this may sound basic and obvious, but even the most experienced practitioner can benefit by going back to the basics, which are all too easy to forget while moving forward as an advocate. Indeed, these tips arise from hard lessons learned over the course of half a century of appellate practice.

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