§ 2.2 Evaluating Whether To Appeal

• Jurisdiction: United States

§ 2.2 EVALUATING WHETHER TO APPEAL

§ 2.2-1 Evaluating the Merits of an Appeal

§ 2.2-1(a) The Changing Field of Play and the Institutional Tilt toward Affirmance on Appeal

To analyze the merits of an issue for appeal, an appellate lawyer must be able to recognize that cases evolve and often change in material ways as they mature through the judicial system. Application of standards of review that define and may limit the authority of the appellate court provides one obvious example. Another example is that the Oregon Supreme Court may feel fewer constraints in its decision-making as a discretionary-review, law-announcing court than the Oregon Court of Appeals may exercise as an intermediate appellate court hearing appeals of right and primarily performing an error-correcting, case-deciding role. See 1000 Friends of Oregon v. Bd. of Co. Comm., 284 Or 41, 44, 584 P2d 1371 (1978) (respective roles of the Oregon appellate courts); see also § 3.4-2(a). For reasons such as these, sometimes there is little, if any, correlation between the arguable viability of an issue at trial and the likelihood of that issue resulting in relief on appeal or review.

The Oregon appellate structure generally leans toward affirmance on appeals from the decisions of juries, judges, and government bodies. That same fundamental leaning exists in other states and the federal system, which share the underlying concerns of the Oregon appellate courts for finality, judicial economy, comity or respect for the role of citizen juries and decisions of lower courts and government bodies, and control of the size and composition of the appellate court's docket.

This tilt toward affirmance is manifest in a range of constitutional and statutory provisions, as well as self-imposed constraints adopted by the appellate courts in rules and case law. Among the more obvious are standards of review that often bind the appellate courts and that defer to the lower court or government body, requirements for preservation of claims of error, and the doctrine of harmless error that denies relief unless an appellant can demonstrate that his or her substantial rights were affected by an error.

Moreover, jurisprudential principles or methodologies that foster preservation of the status quo in the law may preclude changes by the courts in existing common law or constitutional law, or may limit the range of a court's authority in the context of statutory interpretation. E.g., ORS 174.010, ORS 174.020 (statutory interpretation); State v. Ciancanelli, 339 Or 282, 290-91, 121 P3d 613 (2005) (constitutional law); G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 59, 757 P2d 1347 (1988) (common law). See generally Interpreting Oregon Law (OSB Legal Pubs 2009). Application of these principles or methodologies can take an otherwise seemingly attractive argument and render it ineffective on appeal.

§ 2.2-1(b) The First Step: Identifying the Type of Issue on Appeal

In analyzing the merits of an issue for appeal, it is useful at the outset to identify the type of issue that you are dealing with. This is not always as simple as it seems, and if the exercise is not simple then the process of identification undoubtedly has been worthwhile. That is because identification of the type of issue ordinarily carries with it critically important information about how that issue may be adjudicated on appeal.

What follows is a nonexhaustive list of the most common types of issues present on appeal: interpretation of statutes, common law, and the state or federal constitution; application of statutes, common law, or the state or federal constitution (often a mixed question of fact and of law); review of questions of fact (for example, sufficiency of evidence in a civil or administrative proceeding); review of decisions on a range of dispositive motions; review of decisions that may require a new trial, including review of jury instructions and evidentiary rulings; determinations of the lawful statutory scope of regulatory authority; and judicial review of agency interpretations of a statute or the agency's own rule.

§ 2.2-1(c) Step Two: Paying Attention to Appellate Implications Tied to the Type of Issue

Set forth in § 2.2-1(c)(1) to § 2.2-1(c)(4) are several examples of the kinds of implications that may follow from identification of the type of issue on appeal. Although the list is not exhaustive—like the list of types of issues in § 2.2-1(b)—the thread throughout is that it is essential to identify and consider the implications appurtenant to the type of issue in order to make a valid assessment of the merits of an issue on appeal.

§ 2.2-1(c)(1) Statutory Interpretation

One of the most common types of issues on appeal is one that presents a question of Oregon statutory interpretation. Indeed, Justice Jack Landau has edited a book, Interpreting Oregon Law (OSB Legal Pubs 2009), devoted primarily to the subject. And even though questions of statutory interpretation are very common on appeal, it is equally true that the briefing, if any, in the circuit court on these issues often bears only a modest relationship to the depth of the inquiry into statutory interpretation on appeal.

The most notable example of this is that Oregon appellate courts are more routinely consulting legislative history in the process of determining legislative intent behind a statute, whether or not a party briefed it in the circuit court or even on appeal. See Or Laws 2001, ch 438, § 1 (amending ORS 174.020); State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009). Indeed, the Oregon appellate courts have concluded that they have an independent obligation to reach the correct answer on a question of statutory interpretation, regardless of whether a party has raised the argument or authority (such as legislative history or relevant statutory context) that leads to that answer. Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997).

PRACTICE TIP: In cases of statutory interpretation in which the parties have not reviewed or briefed the legislative history during the proceeding below, in order to assess (and ultimately brief) the merits of the issue on appeal, the appellate lawyer would be well-advised to examine the legislative history of the statute. If the lawyer does not do so, there is a reasonable likelihood that the opposing party or the appellate court will, and there clearly is no advantage to having been in the dark, regardless of whether the history is favorable or unfavorable.

To put an even finer point on this, appellate review of the meaning of a statute can be different in the context of civil or criminal litigation and agency adjudication or rulemaking. In civil or criminal cases, appellate review is a pure question of law for the court, whereas in the administrative agency context, in certain circumstances, some measure of deference must be accorded to the agency's interpretation of a statute, even though the court may conclude that there is another equally or even more plausible interpretation of the law. See Springfield Educ. Ass'n v. Springfield Sch. Dist. No. 19, 290 Or 217, 228-30, 621 P2d 547 (1980) (judicial review of agency interpretations of statute); see also § 2.1-4(a). An appellate lawyer thus might well conclude that a client had a good chance of prevailing on an appeal in the civil or criminal context because the client had the better of the two positions with regard to the meaning of the statute, whereas that same appellate lawyer whose client lost that same battle in front of an agency in a contested case or rulemaking proceeding might well conclude that there was no point to an appeal because the agency's interpretation would not be reversed on appeal.

Moreover, once an issue is identified as one involving statutory interpretation, any assessment of the merits of the issue on appeal must take full account of the methodological framework that the court will apply on appeal to ascertain legislative intent. Although the general construct involving statutory text, context, and legislative history is by now familiar, there are literally scores of subsidiary principles and maxims that may inform the exercise and that ultimately may determine the outcome. See Interpreting Oregon Law (OSB Legal Pubs 2009).

§ 2.2-1(c)(2) Questions of Law, Questions of Fact, and Mixed Questions of Law and Fact

The issue on appeal can be characterized as a question of law, question of fact, or mixed question of law and fact. The character of the issue (or the issue within the issue, such as the question of fact in a mixed question of law and fact) will trigger discrete standards of review on appeal. Moreover, those standards of review can vary depending not only on the characterization as a question of law or of fact but also on the nature of the underlying case. For example, questions of factual sufficiency will be reviewed differently on appeal from a verdict in a civil jury trial than on review from an agency order in a contested-case proceeding. Compare Brown v. J.C. Penney Co., 297 Or 695, 705, 688 P2d 811 (1984) (denial of directed verdict in civil jury trial will be reversed only if there is no evidence to support a claim), with ORS 183.482(8)(c) (remand on review of contested case only if there is not "substantial evidence in the record" to support an order).

Any assessment of the merits of an issue on appeal must start from a clear understanding of the standards of review on appeal. See § 2.2-2(b)(3)(ii). Indeed, the parties often disagree about the applicable standards of review, and any potential for the court to apply an unfavorable standard of review, which can be dispositive, always must be considered when evaluating the merits of an issue on appeal.

§ 2.2-1(c)(3) Jury Instructions

Jury instructions generally present questions of law. Sometimes they are generic, such as the Oregon Uniform Civil Jury Instructions or the Oregon Uniform Criminal Jury Instructions, and other times they are tailored to...