To appeal or not to appeal - that is the client's question.

• Author: Elligett, Raymond T., Jr.

An apocryphal story from the days before e-mail and faxes tells of an attorney who sent a telegram to a client, who was not present when the jury returned, advising the client that the client had won the trial. The per-word cost of telegrams prompted the shorthand message: "Justice prevailed." The client responded: "Appeal at once." The knee-jerk reaction of many clients and their counsel is to appeal any loss. However, the client's decision to appeal should not turn on mere dissatisfaction with the result, but on an objective cost-benefit analysis. This should include considering the chances of prevailing on appeal, the potential outcome if the appellant wins part or all of an appeal, and the out-of-pocket costs and attorneys' fees for both parties, particularly if there is a basis to tax fees.

What Is This Going to Cost?

The client and attorney may have differing views of the importance of the cost factor, depending on who bears the risk. The client who has a contingency fee arrangement, when the attorney has been fronting costs, may give less thought to the time and expense of an appeal than a client paying the costs and fees out-of-pocket. The appeal is a new proceeding in a new court. The appellant's costs can be substantial. The filing fee for the notice of appeal pales in comparison to other costs, particularly when there is a large record for the clerk to assemble or a large transcript. Depending on the length of the trial, the transcript can cost $2,000 per day or more.

If the appellant faces a money judgment and wants to post a civil supersedeas bond to forestall collection, that cost also can be substantial (typically a percentage of the bond amount), and counsel should start early to obtain a bond. (1)

If the attorney is not handling the case on a contingent basis, the client may request an estimate of the costs and fees. Appellant's counsel does not control the amount of time or costs of the appeal, since the appellee's answer brief may require unforeseen additional time to prepare the reply brief and the appellee may request oral argument when the appellant was willing to forego it. (2) Additionally, an appeal may prompt a cross-appeal that otherwise would not have been taken.

Alternative fee arrangements can include a flat fee or a partial contingent fee. The latter can offer several variations. For example, a possible variation would be an arrangement by which the lawyer receives a small flat fee up front or a lower hourly...