§ 3.2 Consider The Interests of the Client and the Perspective of Trial Counsel

• Jurisdiction: Washington

§3.2 CONSIDER THE INTERESTS OF THE CLIENT AND THE PERSPECTIVE OF TRIAL COUNSEL

When deciding whether to seek review, counsel should educate the client as to the various factors to be considered and take into account the client's unique interests and point of view. In addition, counsel must consider the perspective of trial counsel, who may have become emotionally involved and lost objectivity during the course of the trial.

(1) Client factors

Many extra-legal factors shape a client's decision to appeal. This subsection discusses some of those factors.

(a) Educate your client from the beginning of the case

The trial lawyer begins preparing the client for the decision whether to appeal by giving the client a realistic appraisal of the merits of the case at the trial level, so that the client understands the court's role in deciding issues of fact versus issues of law, is prepared for an adverse outcome at trial, and is not shocked by the result. Many needless appeals would be avoided if clients understood from the beginning of the litigation that the result they eventually obtained at trial was well within the expectable range of outcomes.

(b) Tailor your advice to your client

Different types of clients evaluate appeals differently, and the attorney must tailor advice to the nature of the client. Individual clients may react more idiosyncratically to the trial court judgment than business or institutional clients, who are often more sophisticated and more experienced in litigation. Individuals typically have less experience in litigation, have a greater emotional stake in the outcome, and may have a greater financial stake, comparatively, than business entities. The attorney must be sensitive to the emotional impact of the trial court decision on the client, and may need to remind the client repeatedly of the economic considerations involved. The individual client, depending on the level of sophistication, may have an unrealistic impression of the scope of appellate review. An individual may have limited resources available for the appeal, which makes it more important to carefully estimate the cost of the appeal. An individual will typically rely heavily on the attorney's evaluation and advice, heightening the importance of an adequate and realistic evaluation of the case.

Conventional wisdom holds that business entities tend to view the decision to appeal as an economic decision. A business judgment to appeal typically turns more on an economic risk analysis than does an individual's decision. This is particularly true for institutional litigants such as insurance companies and governmental agencies. Businesses are also more sensitive to the de facto precedent created by trial court decisions. Businesses may need to appeal a "test" case because it has consequences beyond the immediate litigation. But the long-term consequences of an adverse ruling in the appellate courts may also have more impact than they would for most individual litigants. And emotions may also motivate the decisions of business decision makers invested in the litigation as much as those of an individual.

Privacy considerations also are important, because of Washington's broad policy in favor of public access to judicial records. Unlike trial court records, appellate court decisions are widely disseminated on the Internet and are routinely read by the media in search of newsworthy stories. A case instantly becomes more accessible to the public once it is appealed.

(c) The type of case affects the decision to appeal

Just as the client's personality and identity influence the decision to appeal, the nature of the case and the type of relief awarded by the trial court enter into the decision. It is perhaps easiest to evaluate an appeal if the trial court's judgment awards only money damages. In a "money" case, a cost-benefit analysis can weigh the cost of the appeal against the likely gain or loss on appeal, a purely quantitative analysis. Formal cost-benefit analysis is discussed in §3.3(6) below.

Some cases involve so much money that the client will want to appeal even if success seems doubtful. In such cases, the consequences of prevailing are so great that the...