Vol. 25, No. 6. 60. What Every Lawyer Should Know About Appeals.

Authorby Noella Sudbury

Utah Bar Journal

Volume 25.

Vol. 25, No. 6. 60.

What Every Lawyer Should Know About Appeals

Utah Bar JournalVolume 25 No. 6Nov/Dec 2012What Every Lawyer Should Know About Appealsby Noella SudburyAn appeal is not a do-over. The appellate process is unique, complex, and structured in favor of affirming the trial court's decision. Recent Utah court statistics indicate that in the Utah Court of Appeals, an appellant generally prevails less than 10% of the time. Although the appellate process can be daunting and unpredictable, the following five tips will help lawyers avoid common pitfalls and find their way to a prevailing path:

The appellate process begins at the trial level.

In more than 10% of cases issued this year, an appellate court has declined to reach one or more of the claims on appeal due to a lawyer's failure to preserve the issue for appellate review. For this reason, when a lawyer tries a case, the lawyer must always have the appeal in mind. To preserve an issue for appeal, a lawyer must present the issue "to the district court in such a way that the court has an opportunity to rule on [it]." Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (internal quotations marks omitted). Proper preservation requires a specific and timely objection on the record and citation to legal authority to support it. It requires an attorney to anticipate objections before trial even begins and to prepare a list of objections for trial with supporting law. The more you prepare the objections before trial, the better your objections will be, and the more you will have to work with on appeal. Finally, you must make objections, even if you are afraid it will annoy the judge. If you do not, you risk the likely outcome that an appellate court will decline to review the issue on appeal.

Losing a case does not mean that you should file an appeal.

Many appeals that are lost should not have been filed in the first place. One should not advise a client to appeal merely because the trial court erred or because the client does not like the result. All trial courts err and many clients are dissatisfied, but this does not mean you have an appeal-worthy issue. Instead, whether to appeal depends upon a careful and realistic weighing of the costs and potential benefits to the client. Important considerations may include whether...

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