Mar 26, 2018 | Kevin Stillman
What is an appeal?
When a case is lost at the trial court level, the losing litigant does not need to accept defeat. Instead, the litigant can choose to have another group of judges set above the trial court judges review the case and offer their judgment. Every time we appeal, we are fighting to change the law for everyone. We are trying to take back the law from the subtle yet real pro-insurance industry slant that has tainted the court systems over the past twenty years.
Standards of Review
Sometimes, the appeal is “as of right”—that is, the litigant pays the filing fee with the appeals court and the appeals court must review the case. Other times, the appeal is “discretionary,” meaning the litigant has to ask the appeals court to hear the appeal and come up with a good explanation of why it is important for the appeals court to hear the case.
When the appeals court hears an appeal, they will always take into account the trial court’s decision. What happened at the trial court level—the evidence presented, the testimony taken and the judges’ legal opinions—are all considered by the appeals court. Because the appeals court is a higher court than the trial court, they can review a judge’s legal decision “like new” or de novo. When the review is de novo, they are not required to give any deference to the lower court’s legal decision. However, in many other questions, the appeals court is not so free to substitute its judgement for that of the trial court. When considering how the trial court interpreted the evidence, the appeals court will only review the evidence for clear error, meaning they can only reverse this type of finding if it is obviously wrong. When the trial court judge has made a decision about how to handle the procedural aspects of the trial, such as the introduction or exclusion of evidence or postponing a hearing, the appeals court must affirm the decision unless the judge abused their discretion.
Because the trial courts have a high degree of freedom in the conduct of a trial and in resolving the disputes before them, an appeal can be difficult to win. Furthermore, a decision at the appeals level has consequences for all cases going forward: lower courts will often rely on the decisions of the appeals court as either persuasive or precedential[1] authority. Therefore, I only like to appeal cases that are likely to be overturned on appeal or could otherwise produce a better outcome for my clients.
Planning Ahead: Winning the Appeal Before We Even Go to Trial
The vast majority of appeals are won before the litigant comes into the trial courtroom. An effective advocate knows to lay the groundwork well by developing legal tactics and strategies in advance, gathering the facts and evidence and presenting them to the trial court coherently from the very beginning. A victorious appeal is the endgame of a successfully executed trial strategy. Therefore, we have to prepare every case as if it will be heard by the appeals court.
To Win on Appeal, We Have to Have the Right Facts
When deciding whether a case is worth appealing, we want to ensure that the facts of the case are as close to ideal as possible. For a workers’ compensation case, that generally means the injured worker is a credible witness with a life-changing injury who demonstrates a desire to return to work or improve medically. We also want to make sure that the medical records demonstrate all of the complaints that the injured worker is suffering and causally relate those complaints to the work injury. While missing some of these facts will not necessarily doom an appeal, it will make success on appeal far less likely. An appeals court will want to find a way to help an injured worker who plays by the rules.
Did the trial court make a mistake?
A successful appeal must identify and resolve the mistakes made by the trial court. There are two types of mistakes: the first is a mistake in which the trial court misapplied the law in some fashion or misunderstood a key piece of evidence. The second mistake occurs when the trial court made a decision that we disagree with. The difference between those two types of mistakes is subtle but significant.
The first type of mistake (a misapplication of the law or misunderstanding the evidence) is easily identifiable in the record. The record is a written accounting of all the acts, proceedings, arguments and testimonies in a case. We can ask the appellate court, based on precedent, to fix the mistake and remand for further consideration. On appeal, we review the entire record and explain how a specific fact or inference relied upon by the Court is wrong when considered with several other facts. Other times, we explain why a provision of law cited by the trial court does not stand for the proposition that the Court says it stands for. Errors this simple are rare, however.
Most of the time, when we believe the trial court erred, it is a matter of interpretation of the law or the facts as we see them. For interpreting the law, the lower courts are generally not entitled to deference from the appeals courts and can thus interpret the law as we say it is despite the lower court’s interpretation. We can provide new cases that we did not rely on before or make the same arguments and hope the appeals court is more receptive to those arguments[2]. In this scenario, having helpful facts makes victory easier. A sympathetic set of facts will encourage the appeals court to interpret the statute in a way that will benefit a sympathetic injured person.
It is much harder to win these sorts of cases when disagreeing with the trial court’s interpretation of the facts, since generally a court’s interpretation of the facts is entitled to deference by the appeals court (the idea being that they are better positioned to judge the credibility of witnesses because they heard testimony in person). However, if we have managed to present the right constellation of facts, we can still prevail. We will be able to demonstrate that the trial court’s interpretation of the facts is utterly inconsistent with what the rest of the recorded evidence demonstrates.
Lastly, we must be able to explain how the trial court’s error caused our client harm. This is a difficult measure to gauge: It could be as simple as, “If the jury heard the evidence the court excluded, they probably would have changed their minds.” How a court’s mistake prejudices a party will differ in every case, but we have significant experience in explaining to the appeals court just how our clients suffer prejudice.
Is this the right case for an appeal?
While we almost always disagree when the trial court chooses not to rule in our favor, it is not the case that the trial court always made an error. We can disagree with the outcome but feel that the logic and legal precedents, as applied to the facts, are not incorrect. In those cases, we will almost certainly not appeal the court’s decision—unless we want to overturn the legal precedent.
Much as we need to have all the proper facts, mistakes on the attorney’s part could make a case unworthy of appeal. A case isn’t always lost at the trial court level because of an attorney’s mistake. The appeals court will focus on our mistake, disregard the merits of our case and say the mistake was the reason we lost. This happens, for example, when our medical evidence is not sufficiently comprehensive on the subject of medical causation[3]. This also happens when we do not timely object to the introduction of certain forms of evidence or an improper line of questioning. We cannot introduce new evidence for the appeals court to consider, because the record is set with the final judgment of the trial court. So, the failure to introduce key evidence at the trial court can make an appeal effectively impossible. Another instance in which we can make mistakes that hamper an appeal are when a certain legal argument is not timely raised before the trial court, because the appeals courts will generally only hear issues that were raised, argued, and decided by the trial court. That’s why we feel that it’s important that all of our attorneys are trained to avoid making such mistakes that are in their control to help ensure that we have the best chance of a successful appeal.
Is fixing the trial court’s mistake in both the public’s interest and our client’s interest?
In order to properly present to the appeals court why our case is worth overruling a trial court and changing the law for, we need to develop a factual basis and legal argument proving that our client has played by the rules and that the employer and insurer have not played by the rules so as to encourage the appeals courts to decide in our favor.
To that end, we conduct extensive legal research: We start by reading the statute to see if it supports our position or if it is ambiguous. We review years of case law from across the United States to see if other jurisdictions[4] have decided an issue and why they decided an issue a certain way. Other times we will review the notes of the state legislature or city council behind the creation of a particular law, sometimes delving through musty libraries in order to find out why a legislator had a certain provision entered into a new statute.
With the combination of a legal strategy, a thorough analysis of the facts, and a command of the research, we craft an appeal brief that contains a public policy section. We always explain (either explicitly or implicitly) why our interpretation of the law furthers the goals of the legislature and will make the lives of injured people better. This is why we need the right set of facts and a lack of mistakes on our part. We want to give the appeals court every incentive to rule in our favor. Conversely, we want to make sure the appeals court chooses not to publicly rule against us.
We take an appeal to protect our clients’ rights and to put their interests first. To that end, we prioritize that we do not put our clients in a worse position by appealing. An appeal can take anywhere from four months to two or three years to resolve, and during that time, it can be difficult or even impossible for us to arrange for our client to get benefits. To that end, we will attempt to find a way to meet our client’s goals on a faster time table. Therefore, we will often decline to appeal a case because we can still recoup benefits for our client under the trial court’s decision.
Other times, we may decline to appeal a case because the facts of the case will result in the creation of bad law. If the appeals courts do not like actions that a particular client has taken, they will attempt to interpret the law in a way that punishes a client for their mistakes. This sets a precedent that can then be used to punish other injured people for whatever transgressions the insurance companies or courts think the client has committed. As it is generally difficult to overcome established precedent, we do not want to create future bad precedent. If we think a bad precedent is a likely outcome, we will decline to appeal the case.
Having an Appellate Plan
It is far easier for us to appeal a case when we can create a plan as soon as we receive the trial court order. If we can determine how a case is going to be viewed by the appeals court, we can tailor our arguments to better attract the attention of the judges on the appeals court. Oftentimes, the easiest way to know if you have a plan is if you can outline your appeals brief before you even file the appeal! Conversely, if we do not have a plan in place before we start the appeal, it can be hard to focus on what the winning argument is. Without the ability to define the clear argument, victory becomes improbable to impossible. Simply because we, as attorneys, are upset about losing a case that we think we should have won is not a good enough reason to appeal. While we may think in our gut that the trial court came to the wrong decision, if we cannot articulate the reason why the trial court is wrong, we will lose on appeal.
Every case that an attorney loses is evaluated for appeal. And while each case is different, there are commonalities to successful appeals: If we have all of the evidence, and if we have made all the legal arguments, we can create a plan to explain why the system should lead our client to prevail. We have successfully won multiple appeals over the thirty-one years ChasenBoscolo has fought to protect our clients’ rights and put their interests first—and we have only just begun to fight.
Thought for the Day: “The foregone conclusion bypasses the necessity of the theoretical. What is preordained can never be questioned. Thus, ossified tradition rules without the benefit of reason. In the worst cases, the errors it leads to are so far from identified and corrected that reality itself is misread, misrepresented, and denied.”
– Roboute Guilliman, Essay on the Principles of Command, 8.17.xxiii
[1] A case is precedential authority when it is “reported” or “published.” These cases can be found on the Court’s website and in a series of books called “reporters.” Every attorney has a desire to win at least one published case, because to do so will grant a form of immortality.
[2] We will also explain why the reasoning of the lower court is wrong.
[3] Medical causation: Did we demonstrate that our client’s current disability is medically caused by the client’s work injury?
[4] Generally other states, though oftentimes in negligence cases we will have to resort to reviewing the Federal common law.
