Can I appeal my case?
Judges often tell litigants that one of the parties is going to leave that courtroom unhappy. Judges say this in hearings and trials, either before the arguments begin, before they make their ruling or ask the jury to deliver theirs, or maybe even right before the end of the hearing.
In other words, there will likely be a winner and a loser of that lawsuit. This is common for civil lawsuits, in child protective service cases where a parent loses their rights to their children, and in domestic matters involving custody and property division. The winner/loser aspect isn’t the exact same in criminal matters but, of course, a criminal defendant has the right to appeal his or her conviction. No matter the situation, it’s important for a potential appellate litigant, either appealing a or defending a decision, to take into account certain considerations to determine how to move forward.
If you are the party that is upset with the outcome of a lawsuit and therefore want to appeal it, first consider whether appeal is still even a possibility. In the vast majority of cases, if you have “settled” your case before going to trial, appeal is likely already off the table. This is because settlement is a situation where two or more parties have come to an agreement that is supposed to satisfy everyone and avoid having to be decided by a neutral third party, like a judge or jury. It would be inefficient for the court to consider a situation multiple times if the people involved said, for lack of better terms, “it’s no longer a problem – we figured it out.”
Here are two examples:
One, if neighbors have a land dispute and one of the parties pays the other out and everyone signs off on that new deal, then the matter is settled and appeal is unlikely.
Two, if you are a parent in a private adoption proceeding or a DHS child protective services case and you sign a “consent” or a voluntary relinquishment of parental rights, unless you withdrew that consent in the allotted time (Usually 10 days) appeal is not an option. The other major basis that prevents an appeal from even being able to happen is a time bar. Typically, if the order has been filed in your case, you have thirty (30) days to make the decision whether you want to appeal.
If settlement or timing isn’t a problem (i.e., your angry at what the judge ordered last week) we can talk to you.
One thing required of almost every appeal is a copy of the transcript of the proceeding. Court reporters type everything that was stated in court, word for word, and log of all of the exhibits that were entered into evidence. Here’s the deal – transcripts are expensive. If your hearing or trial even lasted thirty minutes, you are talking about a hefty expense. If you were in the courtroom from 9:00 in the morning until lunch, you’re looking at a few hundred dollars, at least. We bring up the cost of requesting a transcript because it’s the first of many money involved considerations you encounter when deciding whether or not to appeal your case.
One of the first things we want to know from potential appeal clients at WH Law is, from your perspective, what did you hear from the attorneys at your trial? More specifically, we want to know how well the record has been “preserved.” This is one of the main reasons trial attorneys make objections or motions. Those techniques preserve arguments that may come up later on, on appeal. If your attorney said “objection” or “I object” many times during your trial court experience, then it creates issues on which the matter may actually be appealed. Only preserved issues are appealable. If your attorney did not object or move for a directed verdict, it will probably be less likely that your appeal has any real merit. (Pro-tip: when you’re hiring an attorney for anything, ask them if they will make objections for you – if they say they don’t do that then that may be a sign for you to consider another attorney).
If you believe your attorney made or preserved a good record as discussed above, then you next should consider the likelihood of success of your appeal versus the costs, financial and otherwise, of pursuing it. Depending on the standard or review, which we talk about here, the probability of success is a little bit easier to predict than in other cases.
For example, if the appealable issue has to do with a question of fact (i.e., you don’t believe the evidence should have led the judge or jury to the conclusion they made), then it can be very difficult, although not impossible, to convince the appellate court otherwise because they will give a lot of deference to the judge or jury because he/she/they are the ones who were able to hear and evaluate the testimony. Other costs one should take into consideration when thinking about appealing their case, or perhaps even defending an appeal, is what effect such will have on their professional and personal reputation.
If you find yourself in a situation where you need to talk about possibly appealing your case or if an appeal has been filed against the Court in a case in which you prevailed, give us a call.