Session 3: Handling an Appeal—The Decision to Appeal and Preliminary Matters

This post features the video and slidedeck for the third lecture in my Appellate Practice and Procedure course. The presentation appears below.

The first half of this session focuses on the initial questions the client and lawyer should ask when considering a potential appeal. The second half focuses on other preliminary issues such as jurisdiction, the notice of appeal, appellate timetables, docketing the appeal, and requesting the record.

At the threshold, clients most often want to know about cost and the probability for success. Though not specifically addressed in the presentation, another question that comes up frequently is how long the process will take. Lawyers should be prepared to discuss these issues when advising a client whether to appeal.

“What’s this going to cost me?”

This question comes up in every case. The answer depends on a multitude of factors, including the lawyer’s fee agreement (hourly, fixed, contingent, or blended), the size of the record, and the number and difficulty of the issues to be raised. Outside of contingent or fixed-fee agreements, I generally advise providing the client with a range of potential fees to avoid an inaccurate perception that any specific amount quoted is a firm estimate or cap. If the client wants a budget, you should provide one. But make sure the client understands that budgets often must be revised to fit the reality of changed or unforeseen circumstances.

“What are my chances?”

Because the probability for success on appeal cannot be quantified with any precision, it is also best left to a range. If available, court statistics are a somewhat helpful starting point, but they don’t take into account the specifics of your client’s case. Intangible and immeasurable factors such as unanticipated changes in the law and the composition of your judicial panel also play into the result, making prediction even more perilous. If you are unsure about the merits because you haven’t seen the record or aren’t familiar with the legal issues, consider a two-phased representation that allows you to (1) gather information and evaluate the prospective appeal, and (2) have the client consider your more detailed analysis before moving forward. This approach allows the client to make the most informed decision possible.

“How long is this going to take?”

The answer to this question is just as elusive. When will the initial briefs be due? Will the court hear oral argument and when? How long does the court usually take from oral argument to decision? What is the likelihood that one or more justices will write separately? Which judge has drawn the opinion? Do some justices put out opinions faster than others? Are there any judicial “black holes” on this court? Again, court statistics may prove helpful here, but they don’t factor in the issues specific to your case or intangibles that may influence how quickly your matter moves through the appellate system.