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The Five Ws of sensible business appeals.

THINGS DIDN'T GO SO WELL in your lawsuit. You lost when you should have won. Or you won some issues and lost others--but those you lost were the most important to you. The judge blew it, or the jury didn't get it, or your star witness wilted when standing tall counted most.

Whatever the reasons, you now face the decision whether to appeal. As with every other step in litigation, this is an important choice that requires common sense, good business judgment and good legal advice.

Knowing the Five Ws of appeals can help you make the right decision.

Who Should Appeal

You should, if the law is on your side--and if other important factors are considered. Many cases end at the trial court level for good reason. Believe it or not, trial courts often make the right decisions. Further proceedings can be expensive, and it can be hard to overturn decisions on appeal. Typically, appellate courts that hear cases from Utah courts reverse only 10 to 15 percent of trial court decisions. Still, you should consider an appeal if the law is on your side and the stakes are sufficiently high to merit the resources and effort.

What You Appeal

Your appeal must focus on material legal errors made in trial court. An appellate lawyer usually distills the two or three most significant points from the host of issues that have been litigated. Appeal courts are set up not to handle all the minutiae of a trial court proceeding, but to get to the heart of a legal dispute. It is helpful to consider what not to appeal. Appeal courts defer heavily to credibility determinations of witnesses in the trial court--so you rarely appeal those. The appeal courts also give great deference to discretionary decisions made by a trial court and significant deference to factual determinations--so you only appeal those if there is a clear abuse of discretion or a clearly erroneous finding. On pure legal issues, in contrast, the appeal courts generally give no deference. So identifying and articulating your best legal issues becomes of the utmost importance, providing your best chance to win.

Where You Appeal

Your appeal will go to a court that usually handles only appeals. It is important to understand the function and purpose of an appeal court because appellate proceedings can differ significantly from trial proceedings. The appeal courts sit in panels of judges who decide whether the law was properly applied in the lower courts. The sum total of proceedings in the appeal courts usually consists of written briefs and a short oral argument. There are no witnesses, juries or court reporters. The high drama of the trial court is usually absent. In its place are substantive legal considerations and (hopefully) thoughtful analysis. This can seem "boring" to the average litigant, but the stakes can be just as high if not higher. Because the appellate courts have the last word, a victory on appeal can erase the sting of a devastating trial court loss.

When You Appeal

Time is of the essence. You generally have a short time to appeal, usually 30 days from the entry of an adverse judgment (although it can be less, depending on the governing rules). The appeal courts usually treat the appeal time as "jurisdictional"; i.e., if you don't appeal within the given time, the court has no jurisdiction over your appeal. This means the court cannot hear it even if it thinks you have a good case. Again, time is of the essence.

Why You Appeal

You appeal if your case has merit--that's it. Your decision should be motivated by a good faith desire to obtain the right result and not by an emotional reaction to a disappointing outcome. This is as much a business decision as a legal decision. An appeal requires a commitment of time, resources and involves you in continued litigation that may last another year or two--or three. Be sure you have the stamina, the stomach and the staying power to stick with it.

To sum up, use the same sort of business acumen you would use in everyday commercial decisions when deciding whether to appeal. Your appeal lawyer can help guide you through the process, but ultimately the decision is yours. Knowing the "who, what, where, when and why" of appeals can help you make the right decision.

Stephen K. Christiansen, a lawyer since 1993, chairs the Appellate Practice Group at Van Cott, Bagley, Cornwall & McCarthy.
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Title Annotation:legalbriefs
Author:Christiansen, Stephen K.
Publication:Utah Business
Date:Nov 1, 2004
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