Many civil disputes settle before a suit is even filed. Of those cases where a lawsuit is filed and a court decision is made, only a fraction turn into appeals. This means that even sophisticated litigants and seasoned trial lawyers may have comparatively little experience in the appellate setting. Before appealing a court decision, you must recognize and avoid these common pitfalls.

Treating the Appeal Like a Second Trial

It is only natural that the party who loses at a trial wants to turn back the clock and relitigate the case.  Appeals are not a second trial. However, thinking of them as such is a recipe for disaster. An appeal is not an opportunity to present new evidence.

The appellate court considers only the evidence presented at the trial court level. Other evidence is “outside the record.” The appellate court generally does not consider them in reaching its decision. The appellate court also does not second-guess the trial judge’s credibility determinations.

For example, if your case rested in large part on the trial judge believing your witnesses over the opposing party’s, the appellate court cannot reach the opposite conclusion. It can be difficult to accept that the trial judge did not believe your side of the story. Know that the appellate court respects the trial judge’s determination of your credibility.

Lawyers sometimes make this same mistake in constructing and delivering their arguments, as well. Narrative and emotional arguments that might appeal to jurors at trial often fall flat on appeal. A precise, methodical legal argument is more likely to persuade an appellate court than blustery rhetoric.

Overlooking the Standard of Review

The standard of review is the analysis that the appellate court applies to determine whether to affirm.  The applicable standard of review depends on the types of questions presented to the appellate court in a particular case. On questions of law, the Law Court reviews the trial court’s decision “de novo.”

Meaning that it looks at the question without any deference to the trial court. On questions of fact, the court reverses the judgment only if there is no competent evidence in the record to support the result.  This latter standard is extremely favorable to the party that prevailed at trial. It rarely results in the reversal of a judgment.

In many cases, the applicable standard of review effectively decides the outcome of the appeal. For that reason, it is critical to know what standard of review likely applies. Whenever reasonably possible, present your arguments in a way that they can be decided under a standard of review that favors your position.

Jumping the Gun

Sometimes trial courts make important rulings before trial that have a dramatic impact on your chances of success at trial. For example, the trial judge might decide that a document important to your case cannot be admitted in evidence at trial.  A party prejudiced by such a decision naturally wants to immediately appeal that decision.

However, with few exceptions, you can only appeal after the trial. Once the trial court issues a “final judgment.” This is true even if both parties would prefer a ruling from the appellate court before trial. If a party appeals from a decision other than final judgment, the appellate court will likely dismiss the appeal, even if neither party raises the issue. By appealing prematurely, then, you will likely only delay the trial and incur significant additional legal expenses

This article is intended to provide general information. It is not a substitute for legal advice. For advice regarding your specific circumstances, please do not hesitate to contact Rudman Winchell.

Jonathan P. Hunter, Attorney at Law, Rudman Winchell
Jonathan Hunter, Esq
Rudman Winchell

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