A Paradigm Shift

Moving from trial court litigation to appeal, especially after a loss, requires a serious mental shift. To evaluate prospects for success, clients and trial counsel should focus on how appeals differ from the crucible they’ve just been through.    

• First, appellate courts assume the trial court judgment (or appealable order) is correct. Simply put, if you lost in trial court, winning on appeal is an uphill battle. The chance of reversal on any given appeal is never greater than 50% and usually far lower. 
• Second, appellants must show not only error, but prejudicial error. The system is designed to prefer one trip through the trial court per case, and no one’s entitled to a perfect trip—only a fair one. 
• Third, the factual record is fixed. Appellate courts will almost never consider evidence that wasn’t before the trial court. 
• And fourth, specific “standards of appellate review” govern various types of appellate arguments, some more deferential than others. This should influence which arguments you select for appeal.  We’ll drill down on this in a future post. 

 ? The practical message: Every pre-appeal evaluation should start with these realities. A candid cost-benefit analysis depends on them. #litigation #appellatecourts