Q: We lost at trial, but our lawyer insists the judge made several reversible decisions. He recommends appeal, which is going to cost us but that we have a good chance of getting the verdict thrown out. Are we putting good money after bad?
J.N., Rancho Palos Verdes
A: Golf has a name for a redo, that is, for taking another swing or putt without being penalized. It is called a “mulligan.” Our legal system, be it civil or criminal, often allows for an appeal, but it is nowhere near as simple as a mulligan. There are rules that apply, including when the notice of appeal must be filed, the kind of review available, and what portions of the record are to be designated. If you lose, you may be ordered to pay costs. If you have a judgment against you, interest accrues at 10% per year: so, if the appeal is not successful, which is a downside as well. Bottom line, the decision to appeal is one to be very carefully evaluated and talked out.
There are different kinds of appeals, some of an emergency nature (for which the success rate is extremely modest). Most other appeals take well over a year, with a briefing schedule, possible oral argument and then time that passes before the appellate court rules. The likelihood of success is, according to research, less than 30%. The appeals court often encourages the parties to mediate the dispute to try to end the matter all together, so that may provide an option.
Our legal system tries to be fair by allowing a party to pursue a challenge when he or she feels a mistake or injustice has occurred, or that a sound basis exists to modify or vacate a ruling or verdict. Often, there is a three judge panel that will make the determination on appeal, and a majority vote typically is sufficient. There also is the Supreme Court in our state, and the highest court in our country (the United States Supreme Court); however, each Supreme Court limits what appeals either will consider.
Most appeals do not involve a de novo review (do novo means starting anew, thus going over the entirety of the matter, including the facts). Instead, the trial court is where credibility of witnesses can be ascertained, not on appeal. Most appeals are considered on the basis of “a matter of law”.
If you are paying an hourly rate, an appeal can be quite costly. There are not only expenses for the lawyer, but also out-of-pocket costs, such as to obtain the transcript. Still, an appeal can be a strategic move. It might persuade the other party to work things out with you in order to finally be done with the case, and to avoid the possibility the appeal will be successful, in whole or in part.
Note, there are some lawyers who specialize in appellate work, which is a consideration for you. Ask yourself: Is your lawyer best suited to handle the appeal?
Q: The other party appealed and now has set forth the records they want the appellate court to review. The problem is several items that are part of the proceedings are not included and should be. Is that permissible?
D.G., Seal Beach
A: You can file a notice of additional proceedings. The party appealing is not able to limit what is designated. Just know the time frame to do your part.
Also, there is a mechanism to augment the record, to add new material that your lawyer forgot to designate, or did not know at the time was necessary to designate. If the court grants your motion to augment the record, you may have to pay additional costs related thereto, but having a record with all that should be in it is very important.
Ron Sokol has been a practicing attorney for over 35 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
