May 30, 2017

Appeals of Merits and Fees: Does the Tail Wag the Dog?

Bennett Evan Cooper – May 30, 2017

The verdict comes in, summary judgment is granted, and a new trial is denied. By hook, crook, or book, the merits have been resolved in the trial court. All that remains is whether the prevailing party can recover its attorney fees and, if so, in what amount.

But does the appeal of the merits have to await resolution of the fee issues? Jurisdictions vary in their answers to this question, balancing considerations of speed and efficiency in light of the nature of the litigation and the fee issues. And the jurisdiction’s default practice—whether separate appeals or a single appeal—may include safety valves that allow the trial court to separate or join the merits and fees for purposes of appealable judgments.

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