§ 3.4 Alternatives to Appeal

• Jurisdiction: Washington

§3.4 ALTERNATIVES TO APPEAL

By engaging in a realistic assessment of the appellate process, counsel and their clients may determine that settlement and post-trial remedies under the Civil Rules provide alternatives that are worth pursuing.

(1) Settlement

An appeal may have some settlement value, depending on the strength of the appeal. If the prevailing party is convinced that the appellant is serious about proceeding with the appeal, then the prevailing party should be willing to compromise in a way that reflects the risk of reversal. Both parties may find it useful to analyze the probable outcome on appeal to arrive at a probability weighted outcome, and to use this analysis in settlement negotiations with the other side.

Experience suggests that cases are difficult to settle on appeal. The prevailing party is often reluctant to settle, having been vindicated in the trial court, and perhaps viewing the appeal as a frivolous means of further harassing the victor. The best inducement to...