Appealing Propositions: Appellate Issues In The Law - Distinguishing Between Error and Reversible Error; Recognizing and Avoiding the “Bad Facts Make Bad Law” Problem; And Many (or At Least Several) Others

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Right after the judge or the jury renders a “bad verdict” we all have undoubtedly heard, at least, one our clients say they want to appeal the case “all the way to the United States Court, if that’s what it takes to get justice . . . .” Our clients actually probably mean what they’re saying, but just don’t realize what can take place in an appeal. They also sometimes say “don’t worry, money is no object, this is a matter of principle . . . .” We all know they don’t mean that since money is always an issue. Consequently, it is our job as the lawyer appealing the case to wait for “cooler heads to prevail” and to rationally discuss, if possible, the many ramifications of an appeal – including the costs, the length of time involved, and the possible outcomes.

An appeal is much like a forward pass in football – generally there is only one thing which can possibly go right and many other things that can go wrong. Therefore, while, at first blush, a case may seem to have had merit when it was first initiated in the trial court, the fully-developed record may not ultimately provide a either a genuine or good faith basis for an appeal. Moreover, as a purely practical matter for lawyers ourselves, we should understand it is axiomatic when we accept representation of a party we are under an obligation to see the case through its completion, including an appeal if 3 such is warranted. Therefore, for strategic reasons such as client relations and/or settlement posturing by an insurer, we will have to appeal a case which we suspect may not necessarily be a winner. In such circumstances, it is imperative that the client, be it an insured, insurance company, corporate entity, or otherwise, fully understand the process and the possible outcomes inherent in an appeal.

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