Winning and Losing: The Hard Truth About Appealing an Unfavorable Decision

by | Aug 16, 2015

The judge just gave your ex-spouse the entire house. The court dismissed your claim for negligence. The jury announced a guilty verdict in your criminal case. You’re exhausted, frustrated, and looking for a solution. If you truly feel that your case was wrongly decided, your next step, more often then not, should be to appeal. But what should your expectations be? Here’s the hard truth about any appeal — you are fighting an uphill battle.  All things being equal, appeals more often are unsuccessful than successful.  Why is that?

First, consider the fact that in any appeal, the case has already been heard by a judge — an experienced and well-regarded lawyer — who heard all of the arguments and made a decision against the appellant.  Imagine if you had to choose the winner of the World Series for the upcoming season, but you were only allowed to choose from teams who lost their game this past weekend.  No doubt many strong contenders dropped a game — it’s hard to be perfect.  But again, all things being equal, you would have lower expectations of making the right prediction for the World Series if you were forced to choose from a group who had most recently lost.  Every appellant has just lost.  So every appeal needs to be approached with a healthy respect for the daunting challenge of transforming a losing case into a winner.

Second, on appeal the deck is often stacked against the appellant by the “standard of review.”  The standard of review is the standard by which an appellate court reviews the decision reached by the trial court.  It may review “de novo,” in which case the appellate court looks at the issue without any concern for whether or not its decision will line up with the trial court’s decision.  This is the best case scenario for the appellant — the closest he or she can come to a do-over.  Other times, the appellate court uses a standard which is very appellant unfriendly, like an “abuse of discretion” standard.  There, the appellate court may disagree with the trial court’s decision, but will still refuse to overturn it unless the trial court’s decision is completely unreasonable. As you might imagine, this standard is much more difficult for the appellant to satisfy.

Prospective clients may ask an attorney about his win-loss record, which no wise lawyer will answer – and here’s why.  When I field such a question, I am always very honest in my response: I’ve won some cases and lost some cases, but whether I’m on a winning streak or a losing streak really has nothing to do with your chances.  Every case is unique, and it ultimately comes down to your case.  You may have an issue which I believe is very strong.  You may have a case with no real issues that have a shot at success.  I have the experience and ability to give you advice about the strength of your case, and then to see it through, but an ounce of good facts about your case is worth a pound of good lawyering.

So if you want to appeal an unfavorable decision at trial, understand that the odds are against you. However, a good appellate attorney can improve those odds of turning your loss at trial into a winner on appeal.


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