Practical Aspects of the Appellate Process

By Howard M. Goodfriend

Table of Contents

• Preliminary Factors
• Client Factors
• Evaluating the Appeal

Preliminary Factors

Before deciding whether to appeal, the lawyer must have a working familiarity with the basic principles of appellate practice. These principles include understanding the difference between a final and an interlocutory order, being able to identify the issue and determine the applicable standard of review and determine whether the issue has been preserved for appellate review. These areas of appellate practice are addressed by other speakers and in different chapters of the seminar materials. An excellent resource for these basic principles for Washington appellate practice is the Washington Appellate Practice Deskbook (1993). For federal appellate practice see Nelson, Goelz and Watts, Federal Ninth Circuit Civil Appellate Practice(1996).

Client Factors

Evaluating The Client v. Evaluating The Appeal

The appellate process does not occur in a vacuum. Different clients approach an appeal with widely divergent needs, expectations and resources. Evaluating the client's needs is critical in the appellate lawyer's process of counseling the client on whether or not to appeal.

Criminal defendants obviously are extremely motivated appellants. They may have little or no concern for the applicable standard of review and the financial costs of appeal. Moreover, if the client is out on bond, the delay in resolving the case on appeal will likely be a positive, rather than negative feature of the appellate process.

On the other end of the spectrum, institutional clients, such as insurance companies, governmental entities or large businesses that conduct a substantial amount of litigation, will be much more interested in the economics of the appellate process. Institutional clients will appreciate appellate counsel's analysis of the economic risk of appeal. In addition, they may be concerned about the precedent that may be created by a published decision by an appellate court.

Must clients fall between these two stereotypes of the emotionally driven "appeal at any cost" individual and the cold, bottom line oriented risk manager. Individuals who have lived with a case for the many months or years leading to a trial court decision, will often have a substantial emotional investment in the case. This is especially true in cases where the parties' personalities are inexorably involved in the litigation, such as in employment cases. Thus, even when advising a large institution, the appellate lawyer should be prepared to recognize exactly what emotional, economic or institutional pressures are motivating the particular client.

Conversely, individuals do not always approach the appellate process motivated by a purely emotional desire to redeem a defeat at the trial court. Individuals may have less sophistication regarding the nature of the appellate process and litigation in general, a greater emotional stake in the outcome and a greater financial interest in the case than an institution. However, an individual facing an appeal does not operate in an economic vacuum and counsel's analysis of the economic costs and benefits will frequently be the most important advice that the client receives.

The appellate lawyer's "client" will frequently be the trial lawyer who may have a very strong opinion of what the issues are on appeal and what the record will show. That view may or may not be based on reality. The trial lawyer has lived with the case for months or even years before the judgment has been entered. Frequently, the litigation process has created forceful views of the trial court judge or opposing counsel. His or her view of the merits may be colored by inadmissible evidence or answers to questions posed in depositions but not at trial. Trial counsel has thought about the case day and night during trial in a way that may not be the most effective way to analyze the case on appeal.

The trial lawyer, like the client, may be emotionally invested in redeeming a loss. Occasionally, however, trial counsel's opinion may be motivated by concerns regarding potential issues of malpractice. A lawyer may wish to avoid the scrutiny and possible criticisms of his or her performance at trial. Appellate counsel must carefully discern the clients' best interests from the lawyers' interests:

Most appeal briefs are written to convince the clients that the case was a good one and ably tried. The losing lawyer pursues and keeps the appeal for himself so that he can justify (to the client and himself) the decision to push the case through the ordeal of a jury trial. The losing lawyer is, in a way, berating the trial judge, the evidence, and the opposition -- all for the client's edification.

Such appellate catharsis is another reason many lawyers handle their own appeals. They want to make up for their disappointments at trial. They feel bad about losing and suffer for their clients. Handling the appeal is a way to expiate their sense of failure and to restore their confidence.

Owens, New Counsel on Appeal?, LITIGATION 1, 2 (Spring 1988).

Educating the Client

A good appellate lawyer is truly a counselor at law. One of the most challenging tasks that the appellate practitioner will face is educating the client about the nature of the appellate process, the effect of the standard of review and the limited relive available in the appellate courts.

Many clients believe that the appeal process is nothing more than a second chance to prove their case to another court. They need to understand the limited role of the appellate court, the concept of review on the record, and the different standards for reviewing questions of law and issues of fact. Clients will often want the appellate lawyer to prove their case by showing that "everyone lied" at trial. The appellate lawyer's principal job will be to explain to the client that the issues of credibility and impeachment are not going to be effective issues on appeal.

Other clients may understand the distinct role of the appellate court versus the trial court, but may have an unrealistic belief that any error, no matter how technical, will entitle them to relief. The appellate lawyer should tell the client that appellate judges are individuals and don't reach their decisions in a moral or emotional vacuum. Clients need to know of the many "decision avoidance" techniques that the appellate courts can employ, under the doctrines of harmless error, preservation of error, and standard of review, in order to avoid reaching legal issues. The appellate court will want to "do justice" and make sure that the right party has won the case. Contrary to the prevailing public view of appellate courts, they do not frequently reverse trial court judgments on the basis of "technicalities." The court will not want to remand for another round of lengthy and expensive litigation if it believes that the result, no matter how it was reached, is the right result. Thus, appellate counsel needs to view the case objectively and share that objective view with the client from the outset.

Frequently, the best thing an appellate lawyer can do for a client is to help the client achieve closure of a lengthy and emotionally exhausting dispute. An appeal may give this dispute new life, when it is in the clients' economic and emotional interest to let it die. It may be in the client's best interest to simply get on with his or her life. By educating the client on the nature of the appellate process, the appellate lawyer's most valuable service may frequently be in convincing the client not to appeal.

Ethical Considerations In Deciding How To Proceed On Appeal

A lawyer has a responsibility to the client to provide competent representation, including the legal knowledge, skill, thoroughness, preparation and efficiency necessary to the representation. RPC 1.1, 1.3. This responsibility has special aspects in the context of an appeal, because even lawyers who do a great deal of litigation often have very little experience on appeal. When counseling the client on whether to proceed or how to respond to an appeal, the attorney thus must bring to the representation the legal knowledge of the special rules on review that may help or hinder the client's case. The lawyer must recognize that skill in trial litigation may not always translate to appellate skill. Efficiency, too, may suffer when a trial litigator enters the unfamiliar appellate arena.

This does not mean that trial lawyers cannot be ethical and effective appellate advocates. It does mean that every lawyer should be conscious of how the different rules of engagement on appeal may affect his or her ability to effectively represent the client. A case that would be winnable at trial may not be on appeal because of the standard of review, while the presentation of particular legal issues to a particular tribunal may make a respondent's successful result below much more vulnerable than that position might have appeared at the trial court level. In counseling a client how to proceed on appeal, the ethical lawyer needs to be aware of and act on those differences between the trial and appellate court.

A lawyer's ethical responsibilities also include the responsibility to be aware of how non-legal, and in particular emotional, considerations affect the decision how to proceed on appeal. Even in cases that appear to be purely about money or business relationships, the litigation process itself takes a substantial toll on both the client's and the attorney's ability to decide the best course of action. Each possible appellant has been rejected, and in a very resounding way, by a person who society invests with a great deal of authority - the trial judge. The immediate response is often to deny the potential validity of that rejection. For instance, a client who has lost at the trial court level because the trial judge did not believe her version of the facts or found the opponent's witnesses more credible may want to appeal to "vindicate" her understanding of the truth of the facts that informed the trial judge's decision. A manager whose operational decisions have resulted in an unfavorable interpretation of a contract ruling may feel pressure to justify a position that in hindsight perhaps did not reflect the best judgment from a business standpoint. The attorney must always keep in mind and advise the client what can reasonably be accomplished - and what is impossible - on appeal. In these examples, for instance, counsel's obligations would include warning the first client that factual determinations based on assessments of credibility are essentially unreviewable and advising the second client that any reasonable cost-benefit analysis suggests that the monetary consequences of further review may outweigh the potential recovery on appeal.

In providing advice, the attorney must also honestly assess his or her own ability to properly represent the client when counsel's ability to act on behalf of the client may be adversely affected by the lawyer's own interests. RPC 1.7. The most graphic example of this potential conflict is probably in criminal cases, where a claim of ineffective assistance of counsel at trial may be difficult, if not impossible, for the trial attorney to mount himself. But such considerations arise in many other cases on appeal, for instance where the attorney may believe that the trial court's decision was the result of some tactical error in presenting the case, or that the failure to persuasively identify and argue the proper rules of contract interpretation to the trial judge resulted in the bad result. In some cases, the heat of battle alone has so poisoned relations with opposing counsel or the trial judge that the lawyer's ability to provide independent advice and her effectiveness as an advocate may be compromised. RPC 1.7. The sting of a bad loss may cause the most dispassionate lawyer to lose the ability to exercise independent, professional judgment and render candid advice to the client. RPC 2.1. The rules, and good lawyering, require that an attorney acknowledge when that is the case, and consider how that affects her advice to and advocacy for the client.

That said, the attorney has an obligation to the appellate client to abide by the client's decisions concerning the appeal, RPC 1.2, bound only by the sometimes countervailing responsibility to the court and to the judicial system not to bring or defend a proceeding or to assert or controvert an issue unless there is a basis for doing so that is not frivolous. RPC 3.1. That responsibility includes the willingness and ability to argue for an extension, modification or change in the law, RPC 3.1, a responsibility that has particular importance on appeal where the advocate must be able to effectively argue the outer limits of the legal principles governing our relationships as members of this society.

Evaluating the Appeal

Weighing The Merits

The process of appellate evaluation requires a comparison of the merits and the likely outcome of an appeal with the costs of appeal. Appellate counsel must first identify the specific issues that may be raised on appeal. Counsel should then analyze each issue as follows:

• Has the issue been raised in the trial court and preserved for appeal?
• What standard of review will the appellate court apply to the particular issue?
• What are the legal merits of the issue given the relevant precedent and authority?
• What are the equitable merits of the issue?
• What relief is available upon prevailing on the issue?

Preservation of Error

The appellate court will not consider issues raised for the first time on appeal. Moreover, it will only consider those issues that are properly preserved for appellate review by appropriate objection or offer of proof in the trial court.

Standard of Review

While the appellate court reviews issues of law de novo, it will review factual determinations for substantial evidence. See generally, WASHINGTON APPELLATE DESKBOOK, Chap. 18 (1993). Appellate counsel must have a clear understanding of the nature of the issue involved and the applicable standard of review and explain how that standard of review applies to the client's appeal.

Harmless Error

The client must also understand the principle that the error will be disregarded if it had no material prejudicial effect upon the outcome of the case.

The Legal Merits

Appellate counsel should analyze the merits of a case only after making sure that the court will actually reach the merits on appeal. This legal analysis will be one of the few types of work that most lawyers are taught in law school. Where the issue is one arising in a settled area of the law, the merits can be analyzed quite easily. However, generally things are not quite so clear cut. The issue may arise in a developing area of the law or the facts of the case may put the issue in a gray area. In that event, counsel should put him or herself in the place of the appellate court and, based on precedent and counsel's own experience, attempt to predict as accurately as possible the outcome.

The Equitable Merits

Since judges are people, they want to do the right thing. Counsel must determine who the facts of the case will strike the judges. Appellate counsel should analyze the case with an eye toward drafting a compelling statement of facts, so that the court will want to rule for the client to do justice. Can the desired result be portrayed as a matter of common sense, as well as logic and legal precedent? Can the case be portrayed simply, or will the court have to jump through so many procedural and factual hoops that providing the desired relief will simply require too much intellectual energy? Appellate counsel should analyze the issue with these practical questions in mind.

Relief Available On Appeal

For each potential appellate issue, appellate counsel should evaluate the type of relief that the court will likely grant. For instance, will reversal result in a judgment in the clients' favor or simply a new trial? The appellate court has a wide range of options available to it in disposing of a case. For instance, although a defendant may want the appellate court to dismiss the case with prejudice on appeal, if the issue is instructional error, the court is far more likely to remand for a new trial. Appellate counsel must analyze the likely outcome, as well as educate the client on the nature of the relief that the client may obtain following an appeal.

Calculating the Costs

Once appellate counsel has determined the merits of the appeal, counsel must also evaluate the client's willingness to fund the various costs, and live with the delay, that goes along with an appeal. The various costs include the following:

• Direct or out of pocket costs
• Attorney fees
• Responsibility for the other party's attorney fees and costs
• Delay or loss of the use of funds, including interest

These various costs are addressed below.

Out of Pocket Costs

The most immediate costs associated with an appeal include the filing fee (currently $250 for an appeal and $200 for a petition for review) and the costs of transcribing the appellate record. The appellant must pay for the preparation of the verbatim report of proceedings and must file a statement of arrangements in the Court of Appeals within 45 days of filing a notice of appeal. RAP 9.2.

The cost of the reporter's transcript can be substantial, especially in lengthy trials. Although court reporters' fees will vary widely, as a rule of thumb one can anticipate that it will cost approximately $500 for each day of testimony. Court reporters will generally request that one-half of the anticipated cost be paid in advance.

An additional significant cost in a civil case is the cost of obtaining a supersedeas bond in order to stay execution of the judgment. The trial court must approve the amount of the bond and the nature of the requisite security, if it is not a commercial supersedeas bond. RAP 8. The amount of the bond will generally equal the amount of the judgment, plus interest, costs and any other monetary relief that may be awarded on appeal, such as attorney fees. Most judges will require a commercial surety bond or two personal sureties with accompanying financial information or a cash deposit, letter of credit or first position security in real estate in lieu of a supersedeas bond. RAP 8.1(b)(4).

The cost of a commercial surety bond is significant. Commercial surety companies generally require annual premiums of between 2% and 4% of the amount of the bond, in addition to cash collateral to cover the face amount of the bond.

Attorney Fees

Attorney fees are ordinarily the largest single cost in an appeal. Appellate counsel must attempt to make an accurate estimate of the potential attorney fees involved in prosecuting an appeal in order to allow the client to make an informed judgment.

Obviously, counsel's fees will vary depending on the lawyer's hourly rates, the area of practice, the lawyer's experience and the complexity of the case. As a general rule, the longer the trial, the more expensive the appeal. The greater the number of issues, the more expensive the appeal. Finally, the larger the judgment, the more expensive the appeal.

Counsel should also be alert to the possibility of having to represent the client in the trial court on matters that are related to the appeal and the amount of time and effort involved. For instance, appellate counsel may recommend filing a post-trial motion, especially for purposes of preserving issues that have not yet been raised. These possibilities can dramatically increase the amount of fees involved in representing a client on appeal

Fee-Shifting Statutes, Rules or Contractual Attorney Fees

An appellant who fails to prevail on appeal may be forced to pay the other side's attorney fees, in addition to the normal costs required under RAP 14.3. Attorney fees on appeal may be awarded pursuant to statute, contract or court rule. In the event of a frivolous appeal, the appellant may be required to pay the other party's fees as sanctions. RAP 18.1. Many of the fee shifting statutes are not bilateral provisions. For instance, RCW 19.86.090 allows an award of attorney fees to a prevailing plaintiff in a Consumer Protection Act case. A defendant who ultimately prevails on appeal of a CPA case will not be entitled to fees in obtaining the reversal of a non-frivolous CPA claim. Counsel should consider the financial risk to the client in paying the other side's fees as well as his or her own.

Costs of Delay, Interest

An appellant will have to pay interest on any judgment entered in trial court until that judgment is satisfied. In addition, like any other type of litigation, appellate litigation can be disruptive to a client's business, negatively affect the client's ability to buy and sell real property, and consume financial resources that may be better invested elsewhere.

Comparing the Merits and the Costs

There are various ways of qualifying or quantifying the relative strengths and weaknesses of pursuing an appeal. The type of analysis that appellate counsel employs will vary widely, depending on experience, personality, as well as the type of client. Some people are more comfortable with a qualitative analysis, such as, "This appeal is relatively weak. The appellate court will likely affirm the judgment and you will have to pay the judgment plus interest, and the other side's costs. Since it will likely cost you in excess of $25,000 in fees and costs I recommend you attempt to settle the case now, rather than incur these expenses only to obtain the same result you have now."

Some clients may be more comfortable using a more economic or quantitative analysis of the relative costs and benefits involved in pursuing an appeal. For instance, if the judgment is extremely large and the client can bear the cost of superseding the judgment, the client may well decide the benefits of going forward with an appeal outweigh the costs, even if the likelihood of prevailing is relatively low. Conversely, if the best result that can be obtained on appeal is the elimination of a $25,000 judgment, it makes little sense to spend more than $12,500 on appealing the judgment unless the chances of obtaining a reversal are grater than 50%. And given the statistical probability of prevailing on appeal, it is probably malpractice for an attorney to advise a client that their chance of prevailing is better than 50%, even if the attorney believes the issues are sure winners.

It is extremely difficult to assign accurate percentage probabilities to a particular outcome on appeal. However, experienced appellate counsel should be able to come up with a range of percentages for a particular outcome on appeal by looking at the relative merits of the case using the factors discussed in Section II.A, supra. It is important to advise the client that the likelihood of any particular outcome is nothing more than counsel's best opinion -- at best an estimate based on counsel's experience and knowledge, and at worst nothing more than a guess. Assigning a percentage likelihood to a particular outcome should therefore be used with the caveat that it gives only a rough approximation of the cost and benefits of pursuing an appeal.

One example of quantitative analysis is to assign percentages to the various potential outcomes so that the total percentages equal 100%. One can multiply each percentage probability to the cost of obtaining that outcome and then add the various probable outcomes together to come up with a probability weighted outcome, which can be used as a rough estimate to determine whether to appeal, or whether to settle and for how much.

An example illustrates this analysis. Assume that your client is a local government sued under 42 USC §1983 for firing an employee without giving her a constitutionally required pertermination hearing. The plaintiff also recovered damages under Washington common law for intentional inflection of emotional distress. In a special verdict the jury segregated damages under Section 1983 for back pay at $50,000, and for future lost earnings at $250,000. The jury also awarded $50,000 in emotional distress damages in connection with the deprivation of the due process right to notice and a hearing under both claims. The trial court then awarded attorney fees and costs under 42 USC § 1988 in the amount of $50,000.

In your analysis of the case, you have determined that there is a very strong argument that the trial court erred in allowing the jury to award future lost earnings from the deprivation of the plaintiff's due process rights. The trial court refused the defendant's request to dismiss the claim for future wages at the end of the case, rejecting the defense argument that there was insufficient evidence the plaintiff would have kept her job had she been given the hearing she claims was due. The trial court then refused the defendant's request to have the jury instructed to determine whether the defendant nonetheless had cause to terminate the plaintiff's employment.

You have estimated that the total fees and costs in appealing the judgment will be approximately $25,000 in connection with this five day trial. You will also have to estimate the plaintiff's fees and costs on appeal because your client will have to pay these fees if the judgment is affirmed. You believe that plaintiff's appellate fees and costs will be slightly less than those of your client's because plaintiff will not be responsible for ordering the reporter's transcript. You estimate plaintiff's fees to be $20,000.

Now that you have quantified the costs, the next step is to weight the merits of the appeal, taking into account the standards of review, preservation of error, the likely outcome, the legal merits and the equitable merits. You believe that the best result would be to obtain a reversal and dismissal of the largest portion of the judgment - for lost future wages - because of lack of evidence that the plaintiff would have otherwise been entitled to keep her job. You believe that this argument has strong equitable or common sense appeal, and that it is supported by the precedent, but after studying the record and talking to trial counsel, you believe it is likely that the appellate court will hold that the evidence is sufficient to present an issue of fact for the jury on this issue. You therefore quantify this sufficiency argument by giving it a 20% chance of success.

By contrast, you believe that the instructional error has equal common sense appeal but is much stronger legally. You therefore give it a 50% chance of success. However, this argument will only get your client a new trial, and the plaintiff has a strong argument that the new trial could only be limited to the issue of future lost wages, rather than both liability and damages. You believe that if the case is remanded for a limited retrial on the issue of adequate cause for termination, plaintiff will not recover any damages for future lost wages and, therefore, will not recover additional attorney fees under § 1988. You will, however, have to take the costs of a new trial to your client into account in performing your analysis.

The other likelihood is that the appellate court will simply affirm. You assign that outcome a 30% probability.

This analysis shows that it is probably in the client's interests to appeal the adverse judgment. The cost of paying the judgment now is $400,000, greater that the weighted outcome of $267,500. Under this scenario many clients, especially the governmental client that can afford the cost of going forward, would probably take their chances on appeal and hope that the case will be settled, either before the appeal is decided, or before a new trial on remand if the appeal is successful. By incurring the $25,000 in attorney fees and costs, the client has a strong probability of saving $132,500 by appealing.

Conclusion

Of course, the quantitative analysis is only as accurate as the percentages assigned to each probable outcome. This fact illustrates the benefits of having an experienced appellate lawyer consult on the decision whether or not to appeal. Regardless of whether the analysis is qualitative or quantitative, appellate counsel can analyze a case as the appellate court will and help the client make an educated decision.