Utah Appellate Law Update
| Publication year | 2015 |
| Pages | 28 |
March, 2015
Whether to Appeal in Civil Cases
Beth E. Kennedy, J.
Whether to appeal is the first question in the appellate process. And often, it is also the most important one.
The presence of an error alone is not a sufficient reason to appeal. Indeed, all trial courts err. This is true because the judicial system has chosen efficiency at the expense of correctness in some circumstances. For example, consider what happens at trial when an evidentiary objection is made. The trial judge does not have time to stop the trial and research the issue extensively before issuing a ruling. The system, by design, places trial judges in an impossible position. Lawyers should warn clients not to expect error-free litigation.
In light of these realities, deciding whether to appeal requires more than the identification of an error. It involves an evaluation of the potential costs, the potential benefits, and the probable result after the appeal. Below are questions every potential appellant should ask before deciding to file a notice of appeal.
What are the potential costs?
The costs of an appeal can extend beyond the financial cost of paying counsel to submit briefs and present oral argument. In some cases, an appeal presents a risk that your client will have to pay the opponent’s attorney fees under a statutory or contractual fee provision. Depending upon the nature of the case, it can also create stress and prevent closure for your client during the long appellate process.
What are the potential benefits?
Victory in the appellate court doesn’t always mean your client has obtained the result he wants. Reversal on appeal could end the case in your favor, but it could also simply provide another opportunity to prevail in the trial court. If a new trial is the best result you can achieve on appeal, then deciding whether to appeal will require you to consider your likelihood of success in the new trial, along with the costs of a second trial.
What is the probable result?
Attempting to determine the probable result after appeal is more complicated than predicting the likelihood that your argument will prevail. For example, even the best legal arguments can fall flat when faced with appropriate procedural bars. Lawyers should warn clients that the appellate courts will not correct every error that the trial courts make. Instead, lawyers should consider a number of...
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